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Legal Feminism

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Legal Feminism
Activism, Lawyering, and
Legal Theory

Ann Scales

a
NEW YORK UNIVERSITY PRESS
New York and London
new york university press
New York and London
www.nyupress.org

2006 by New York University


All rights reserved

Library of Congress Cataloging-in-Publication Data


Scales, Ann.
Legal feminism : activism, lawyering, and legal theory / Ann Scales.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-0-8147-9845-4 (cloth : alk. paper)
ISBN-10: 0-8147-9845-4 (cloth : alk. paper)
1. Feminist jurisprudence. 2. Sex and law. 3. Feminist
jurisprudenceUnited States. 4. WomenLegal status, laws,
etc.United States. I. Title.
K349.S296 2006
340'.115082dc22 2005037590

New York University Press books are printed on acid-free paper,


and their binding materials are chosen for strength and durability.

Manufactured in the United States of America

10 9 8 7 6 5 4 3 2 1
In memory of Elizabeth Randel Scales, 19181992
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Contents

Acknowledgments ix

Introduction 1

I Places of Stuckness: Roles, Rules, Facts, and


the Liberal View of Human Nature
1 The Rule of Law 17

2 Certainty and Doubt 32

3 Intractable Questions 47

4 The Limits of Liberalism 63

II Places beyond Stuckness: Feminist Notions,


Controversies, and Promises
5 Feminist Legal Theory 83

6 Feminist Legal Method 100

7 False Consciousness 120

8 The Future of Legal Feminism 137

Notes 153
Index 209
About the Author 219

vii
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Acknowledgments

Many people have helped in many ways with this book.


Judge Robert Henry of the United States Court of Appeals for the Tenth
Circuit instigated the project and encouraged me to reach out to judges.
The University of Denver College of Law provided summer research
support that made it possible to do this, rather than other work.
Diane Burkhardt and the staff of the University of Denver College of
Law library have been wonderfully responsive, thorough, and prompt.
The same is true of my research assistants, Matthew Linton, Dara Lum,
Lukas Staks, and Keelin Grifn. The students in my Advanced Jurispru-
dence seminar in the spring of 2005 read an earlier draft, commented
extensively, and identied exemplars of the ideas I address. My friend
and former colleague Jane Caputi read an earlier draft, and provided
invaluable insight about what nonlawyers needed to benet from this
book. My editor, Deborah Gershenowitz, kept me on track and pro-
vided cheerful condence that I could not have mustered on my own.
Finally, Laura Spitz has been tirelessly generous in the editing of the text
and discussion of the ideas. Thanks to all of you. Errors and misjudg-
ments are my own.

ix
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Introduction

Whatever happened to legal feminism? Has it done any


good? What is it or was it? It is still around? Does it have a future? Per-
haps these questions could be answered in a linear way, but I am better
equipped to address them inside out, from the point of view of a found-
ing mother, so to speak.
I started my career as a feminist lawyer in 1978, was a ground-oor
participant in what came to be known as feminist jurisprudence,1 and
am said by some to have invented the term.2 I taught law from 1980 until
1998, during which time feminist legal theory took off. It was never a
monolithic movement, but it was possible in those early yearsmore or
lessto chart the competing versions of legal feminism, and even possi-
blemore or lessto place specic authors and activists on that chart.
Professor Martha Chamallas has provided a reliable history of that time,3
showing how the liberal feminism of the 1970s was joined in the 1980s
by cultural feminism and radical feminism, sometimes called dominance
feminism, a dramatic turn that is indelibly associated with the work of
Professor Catharine A. MacKinnon. The 1990s saw the emergence of
more versions of feminism and what Professor Chamallas calls allied
intellectual movements, notably Critical Race Theory and queer theory.4
As more voices joined the debate, it got pretty raucous. Even though
there were sharp disagreements and discomforts, those were heady
days. Most of the feminist jurisprudes knew one another, talked with
one another, and kept track of one anothers work. Some of us had been
associated with Critical Legal Studies, the most innovative jurispruden-
tial movement of the 1970s, and some of us became prominent Critical
Race Theorists. In the 1980s and for part of the 1990s, the Crits, the
Fem-Crits, the Race-Crits and the emerging Queer-Crits were almost
familial in both our affections and our disputes.
Now, it is not as if we are a broken family. Rather, time has moved
on, divisions and disputes have proliferated, and it is just not possible to

1
2 | Introduction

know everyone as well as we did when I knew who we were. Insofar


as I became disenchanted with the collective enterprise, it was a result
of exhaustion and grief.
I was shattered by the 1991 murder of Professor Mary Joe Frug.
That murder in Cambridge, Massachusetts, generated national attention
for two reasons. First, it was considered a classic whodunit, and is
still unsolved, even though police searching for a motive went to the
trouble of learning about feminist jurisprudence and poring over the
transcripts of Mary Joes former students.5 Second, after the Harvard
Law Review published an unnished, obviously unpolished, and not
fully baked article by Mary Joe, some of that law reviews editors pro-
duced a vicious parody of the article on the anniversary of her death.6 I
happened to be at Harvard for a gathering in Mary Joes memory the
morning after the parody became public. It was a toxic experience. That
parody provoked cries for punishment of the editors (which never hap-
pened), and became part of another public meltdown at the Harvard
Law School. Mary Joe herself became lost in the controversy. I should-
nt have been surprised that Harvard law faculty and students managed
to make it all about them.7
That was awful, but not as awful as losing her. I told Mary Joe that
she was like a golden retriever on speed. Not only did she have the
salient strawberry-blond big hair; she was that loving, that engaged,
and that energetic. Many of her friends and colleagues would agree, I
think, that she was the glue for lots of conversations. She got the Crits
to listen to the Fem-Crits. She put the Fem-Crits and the Race-Crits in
the same room. Famously, she got our friend Professor Drucilla Cornell
to sit down and explain, word for word, taking as long as it took, a sin-
gle paragraph from a postmodernist text. Mary Joe Frug was always the
last person awake at a conference, and always the rst person to dis-
cover a new voice and make it central to the next discussion. When we
lost Mary Joe, a lot of the collaborative fun of what had been feminist
jurisprudence was also lost, at least for me.
Of course I experienced the fun-leaching only gradually. When I was
nancially able, in 1998, I took a break from academic life in a big way,
by giving up my tenure at the University of New Mexico Law School.
Thereafter, I practiced law a bit, lived in Canada for a while, and
though I taught a few courses on an adjunct basis, I assiduously did not
pay attention to the intellectual agenda of the legal academy. Some aca-
demic acquaintances told me later that they thought I was dead, too.
Introduction | 3

Various familial, nancial, and intellectual considerations brought


me back into full-time law teaching in 2003. Upon my return to the
academy, it seemed to me that much of feminist jurisprudence had gone
missing at the same time that I had gone missing. Before my disappear-
ance, I was already a bit grumpy about what I regarded as the en-
croaching domestication of feminist legal theory, the dulling of some of
the sharpest edges.8 Sure enough, as of my reentry, I discovered that we
were in a postfeminist age.
For example, in the spring of 2005, I attended a conference built
around the topic of Professor Janet Halleys admonition that it is time
to take a break from feminism.9 I shall have more to say about why
that is a bad idea, and much more to say about what it might bethis
legal feminism thing that some believe we should take a break from. In
the meantime, however, I would underline the assumption in Halleys
injunction: taking a break from feminism assumes there is some inu-
ential group that has actually embraced something called legal femi-
nism to such an extent that anyone could meaningfully take a breather
from it.
The postfeminist imperative stands in stark contrast to ofcial ig-
norance. In 2002, just as I was considering reentry into the academic
realm, the Honorable Robert Henry of the United States Court of Ap-
peals for the Tenth Circuit invited me to speak to a plenary session of
that courts judicial conference. The topic assigned to me was law and
feminism, and I had ten whole minutes to address the issue. My com-
ments were intentionally mild and elementary,10 but the response I got
from every other judge at that conference boiled down to this: I was a
representative of just another whiny interest group who wanted its sub-
jective preferences enshrined in law.
I could say that the judges of the Tenth Circuitas well as almost all
other judges in the United Stateshave taken a break from feminism,
but that would be an odd way to put it. That which was never fully un-
derstood or embraced cannot be abandoned. What Ive observed upon
returning to law teaching is a disjunction between theory and practice
that surpasses anything I had previously experienced. It is that disjunc-
tion that provokes me to write this book.
I intend to take the reader back to some feminist basics, via discus-
sion of the problems that make judges identify people like me as repre-
sentatives of whiny subjectively inclined interest groups. I hope that my
reiteration of the problems of jurisprudence and the ways feminism can
4 | Introduction

assist with them will be enlivening. At least one judge thinks so. In
discussing the highly exposed disjunction between judges and legal
academics,11 Judge Henry opined that decision makers could use a de-
jargonized account of why legal theory, and feminist legal theory in par-
ticular, should matter to them. All that account needed to be, he said,
was graspable, fascinating, and nonthreatening.
So, this is a book about legal theory for theoreticians and nontheo-
reticians alike. More precisely, this is a book that seeks to steer away
from the problems lawyers invite when we imagine that legal theory is
separate from what lawyers do. Equally, it is a book that seeks to steer
legal theory back toward feminism, focusing particularly on the prag-
matic and political promise in doing so. Thus, this is also a book about
lawyeringstructuring approaches, being a responsible legal actor, and
even avoiding malpractice.

Does She Have to Use the T-Word?


Theory is not popular among lawyers and judges. They typically pride
themselves on their practicality. Clients must be served, dockets must be
moved. In the professionalist view, there is neither time nor patience for
academic gobbledygook. If you want to know whether this judicial dis-
trict allows motions to be led by fax, your time will not be well spent
by looking to Kants Critique of Pure Reason. Usually, lawyers sharply
distinguish between experience and theory, celebrate only the former,
and are content to let law rest on its own internally generated standards
and justications.
I want to reclaim for feminism the wisdom in that stance, without
devolving into complacency. An enterprise is practical if it is appropri-
ately evaluated by its successes and failures in worldly application,
rather than by the satisfaction it provides upon quiet contemplation, or
even by the votes it secures during a race for tenure. This is also part of
what theoreticians mean by referring to an enterprise as instrumental.
Law is the exemplar of an instrumental discipline. Even if it has some
value in itself, it is primarily a means to an end or ends. The problems
arise, of course, when we seek agreement on what the ends are or
should be. Feminism is all about informing that debate.
Even to begin that debate is relatively new in jurisprudence. My stu-
dents are, understandably from their twenty-rst-century point of view,
Introduction | 5

incredulous when I tell them that in the longest part of intellectual his-
tory to date, the law was considered a self-contained discipline that pro-
ceeded according to xed, objective rules. The maxim at lex, pereat
mundi (let law exist though the world perish), etched in marble above
many a courthouse door, is to them a matter for beery Friday evening
amusement and/or another reason not to study Latin.
In the twentieth century, a movement called Legal Realism retired the
notionpermanently, one hopesthat the law is a self-contained enter-
prise. Legal Realism was a complex movement,12 but it stood at least
for the propositions that law is elastic, interdependent with politics,
and interdisciplinary by nature. Law is about the rest of society, and
works only when tuned to social experiences. So thoroughly absorbed
are these lessons that no one can even recall who rst said, We are all
Realists now.13
Not all lawyers nd their intellectual history as inherently fascinat-
ing as I do. Indeed, although it is not possible, to paraphrase Professor
David Luban, for lawyers simply to stipulate the philosophical implica-
tions of their work out of existence,14 theory is not compulsory study for
lawyers. Four reasons to be familiar with legal theory, however, underlie
this book. First, when they are lucky enough to have interesting work,
lawyers will likely have to make choices that are theory-laden. Becoming
conscious about the theoretical context of those choices will make those
choices better. Ideas win cases. As Justice Holmes said, [Theory] is not
to be feared as being impractical, for, to the competent, it simply means
going to the bottom of a subject. . . . To an imagination of any scope
the most far-reaching form of power is not money, it is the command
of ideas.15
Second and relatedly, philosophical inquiry incites doubt. Doubt
causes a person to examine his presuppositions, and that is a good
thing, if only as a matter of intellectual hygiene. Theoretical compe-
tence, in Judge Richard Posners phrase, helps us to clear the under-
brush in analyses of legal problems.16
Third, people that I care about really do care about the questions ad-
dressed by legal theory. Law students worry about possible connections
between law and justice. Lawyers wonder whether their work matters.
Judges feel that they walk a ne line of legitimacy, and some agonize
about it. It cant hurt any of us to have a sense of where these concerns
t into legal thinking, and to have a vocabulary to address them.
Fourth, I dont believe there is a meaningful split between theory and
6 | Introduction

practice. Concrete and stable legal successes are grounded, consciously


or not, on theoretical foundations. If theories dont work in prac-
tice, they are not very good theories. The habit of dividing theory from
practice eventually impoverishes professional life and the law itself.
Moreover, when lawyers cease to think of their enterprise as theoreti-
cally grounded, therefore impervious to change from theoretical cri-
tique, they systematically harm groups who werent part of creating
legal codes in the rst place.
Theoretical pursuits were expanding dramatically right at the time I
entered law school. The jurisprudence of Critical Legal Studies was
being built by the people who were teaching me contracts and legal
history and jurisprudence. As noted earlier, I was blessed to be there
to help build what came to be known as feminist jurisprudence. Since
then, theoretical contestation among legal academics has become ever
more intense.
Having said that, and having happily been around for a great deal of
the brouhaha, I would be hard-pressed to identify any dominant intel-
lectual agenda in the legal academy. There is still plenty of talk about
postmodernism, law and society, law and economics, and now the new
realism. However, these are diffuse movements, if movements they can
be called, and none present anything like a united front. In terms of
inuence on the profession, Professor Thomas Grey has observed that
each of the existing jurisprudential approaches

challenges others as defective, and partly as a result, they tend to cancel


each other out, leaving the effective triumph to the ever-present profes-
sional default option: law is law, an autonomous activity with its own
self-justifying standards of internal reection and deliberationthink-
ing like a lawyer.17

I think the lack of an intellectual agenda is itself dangerous, because it


leads to that professional default position, and encourages unexamined
self-interest among lawyers and judges.

Does She Have to Use the F-Word?


I am therefore asserting that feminist legal theory can make a difference
all over again. Some might think it is an awkward time for me to be
Introduction | 7

doing so, or that I am thoughtlessly rendering myself ineffective. For


example, in 2003, after the Tenth Circuit gig, I gave a talk to another
group of judges about the application of feminist method to adjudica-
tion. I was honored when an eminent state court judge, notably well-
read and progressive, stayed after my talk for a discussion. My lecture,
she said, admirably addressed how good judges actually approach their
most difcult challenges. Why then, she asked, would I contaminate
my own message by labeling it as feminist? Why be so unnecessarily
contentious?
My rst thought, Ill admit, was to think of one of my heroes, Will
Rogers, who said, Im not a member of any organized partyIm a
Democrat.18 It is true that feminism has a tumultuous history, complex
contested meanings, and conicted constituencies. The judge in the con-
versation was giving the critics of feminism every benet of every doubt.
I should have engaged her in a different mode: all of the contention and
complexity in feminist theory makes it more mature, and more interest-
ing. The bottom line is this: lawyers and judges have lots to learn about
law from feminism, their outspoken resistance notwithstanding.19
Among the most intriguing lessons of legal feminism is how the mere
use of the f-word discredits a point of view. Ordinarily I resist the
requirement that every feminist on every occasion has to explain femi-
nism again. Im always tempted to say, Im only going to tell you this
one more time. But that is what I will do, shortly. The second half of
this book engages the specic contributions of feminist legal theory to
jurisprudence, particularly in response to the problems that I describe in
the rst half.
In the meantime, however, at least to postpone contamination, per-
haps I should provide an abbreviated map of the eld in which Im
operating. At the risk of beginning on a negative note, it is critical to
state what, in my view, feminist work is not. It not produced only by
women or something that all women produce. In law, it is informed by
but not conned to issues that are historically and socially of particular
concern to women, such as reproduction, rape, prostitution, domestic
violence, pornography, pay equity, sexual harassment, and the legal
creation and dissolution of the family. Finally, though gendered lenses
can illuminate new aspects of almost any legal problem, the feminism I
practice is not reductionist: I dont believe that all social problems are
created by gender inequality or solvable by gender equality.
Starting from the positively descriptive side, feminist work is the
8 | Introduction

study and practice of all that follows from the proposition that women
are people. That sounds simple, but it leads to a number of insights
that, I believe, provoke the charge that feminism is too contentious.
This includes the observation that women have historically been under-
stood as women while men were understood as people. That is
why merely to call work feminist is to risk dilution of its importance.
The historical norm was to identify only half of the worlds population
with humanity and rationality. This genderization has systematic nega-
tive effects on women as women, on men as men, and on the multitudi-
nous aspirations of the human species.
To divide the world that way is to embrace partiality as universality,
hence systematically and intentionally to misunderstand how partialities
constitute the whole. It degrades every person and every community.
Gender literacy is among the most serious pro-life work that anyone
can undertake. The charge of contentiousness ows from daring to
name gender hierarchy as something other than natural and neutral. To
me, this is not male-bashing; it is both male- and female-liberating.
Positively, the feminism I know is concrete, antiessentialist, contex-
tual, instrumental, eclectic, and open-minded. It is concrete because it
grew from and answers to the real experiences of subordination caused
both to women and men by gender hierarchy. It does not depend on any
transcendental moral principle, unless a commitment to equality is that.
Indeed, the feminism of which I speak is antifoundationalist, a concept
developed in chapter 2, because it recognizes that foundationalist ex-
planations usually are excuses for social inequalities. The feminism of
which I write is antiessentialist because not only is point-of-view the
primary referent for social action but point-of-view is itself an elastic
and contextual phenomenon. All of the ways that each of us partici-
pates in our various identities are constituted by historical, cultural, and
individual practices. The sources of essentialism are beyond feminist
control. Existing modes of power attempt to essentialize our identities,
the better to capture each and every new incarnation as a market niche.
My feminism is built from resistance to that.
This feminism partakes in a great tradition of viewing law as an
instrumental enterprise. Law is not a xed mirror of human rationality
but a awed and uid means to various human ends. Feminist scholar-
ship and advocacy aim to expand upon legal goals and map paths to
their achievement. We have to be eclectic, using ideas derived from
Introduction | 9

many sources. We have to be prepared to revise our beliefs and strate-


gies when necessary because experience is too complex to be captured
by any reductionist or rigid approach.
Maybe it is just the f-word that puts people off. There are alterna-
tives to the term feminism. Most likely for me would be antisubor-
dination theory,20 referring to the set of movements that focus on how
law constructs and maintains hierarchical power relations on the bases
of race, sex, ethnicity, class, sexual orientation, gender status, disabil-
ity, or, importantly, any synergistic combinations of discriminations,
whether experienced at present or arising in the future.
Feminism is certainly part of antisubordination theory or vice versa. I
dont think I get any persuasive mileage out of using the term antisub-
ordination theory, however, because it, too, is oppositional: it leads to
the naming of who has power and who doesnt and why that is not neu-
tral and natural. Moreover, it would be a slight misrepresentation of my
own credentials, coming as I do from the feminist wing. If there is any
truism to emerge from antisubordination theory, it is the necessity to
attend to dissimilarities between and among experiences of subordina-
tion. Perhaps I should dance with them that brung me, with awareness
of the broader implications of antisubordination theory.
Another semantic candidate to substitute for feminism is gender
mainstreaming.21 It is the term for the commitment by the European
Commission and almost every member state of the European Union to
go beyond equal treatment guarantees and attention to specic wom-
ens issues toward a new vision of sex equality. My hat is off to all of
the European feminists, race critical scholars, antiviolence specialists,
and environmentalists who are pushing and pulling, inch by inch, with
astonishing patience to make the European vision real. Gender main-
streaming has much to commend it in scope and intention but may be
insufciently oppositional. We shall see whether its proponents will be
able to keep the bureaucracy from transforming it into happy-face femi-
nism, a practice devoid of re, fury, and respect for our foremothers.
For now I will just emphasize that everything I know about practic-
ing law, teaching law, and theorizing about law is what I have learned
by studying feminism and participating in the feminist legal project. I
cannot believe that mine was a singular intellectual journey, nor that it
is a path now unavailable to those who want to understand more about
the common enterprise of doing law. Moreover, I believe that the ideas
10 | Introduction

tested and contested in the feminist project have reached a state of ma-
turity and pervasiveness to have already become a solid part of the com-
petent lawyers intellectual repertoire. The day may not be too far off
when no one can remember who rst said, We are all feminists now.

Organization of Book
This book does not jump into feminism right away. Rather, it is orga-
nized according to the steps of the journey that a thoughtful student
will likely encounter as she attempts to t the enterprise of law with
other considerations of knowledge, ethics, and politics.
In asserting that feminist legal theory provides guidance, I believe
that it is important to rst set out the problems, and the typically false
solutions that lawyers are likely to encounter. No professional disposi-
tions, arguments, or philosophical fashions can simply catapult the law
beyond these problems. The most basic issuesincluding metaphysical
oneskeep cropping up. So, before directly introducing the insights of
feminist legal theory, I mean to situate the reader among the problems
that any jurisprudential approach must assist in solving, or must pro-
vide justication for ignoring. Understanding the issues, creating a per-
sonal economy to name and deal with them, is fundamental to doing
better. These are the questions that make our brew yeasty or at; ac-
knowledging and grappling with them makes the difference.
Thus, the book begins with the broadest inquiry, what is the Rule of
Law? Were engaged in a common enterprise that seems to be more
than the sum of its parts, more than just the rules and the elements of
causes of action that are memorized in the rst year of law school. It
may be useful to step back and consider what the common enterprise in
service of the Rule of Law might be. There are many ways of under-
standing it, some that will be comfortable for most lawyers, and some
that will pressure lawyers to think more about the ideal of justice.
In chapter 2, I turn to the question of doubt, its pervasiveness, and
the historical range of responses to it. This very broad inquiry is neces-
saryand I cannot give this notion enough emphasisbecause respon-
sible lawyering and judging are in large part about doubt tolerance.
Lawyers must constantly calibrate various aspects of uncertainty in our
work, for two reasons. First, certainty is impossible. Second, and more
Introduction | 11

important, reckless or habitual claims to certainty are a brutal means of


dissolving the fragile bonds of trust that constitute the rule of law.
The next two chapters concern the inadequacies in the default profes-
sional position. Chapter 3 insists that, as much as lawyers may resist it,
law is a metaphysical enterprise. In particular, that chapter is an ex-
tended reection upon the metaphysical implicationsand delusions
generated by claims to legal facts. Nature doesnt disclose facts once
and for all. Rather, language users establish what counts as a fact by
contextual and purposive means. Chapter 4 explains the philosophical
contextclassical Liberalismthat has for so long made it OK for
lawyers not to have to think beyond the immediate interests of them-
selves and their clients. In that chapter, I introduce feminist notions in
contrast to habitual modes of liberalism.
Stated differently, the rst four chapters locate typical intellectual
and emotional refuges from the responsibilities imposed by engagement
with the law. Some take refuge in institutional constraints (The Rule of
Law). Some take refuge in radical skepticism (Certainty and Doubt).
Some take refuge in the facts, particularly as proven by science
(Intractable Questions). Law school teaches that there is refuge in radi-
cal individualistic proceduralism (The Limits of Liberalism). I hope to
show that we can run to, but cannot hide behind, these shadows.
In the second half of the book, I turn to the theoretical and method-
ological contributions of legal feminism, those precepts and practices
that I believe have already found their ways into successful lawyering
and judging of all manner of legal problems. Chapters 5 and 6 are sub-
stantially recast versions of articles I have previously published.22 Chap-
ter 5 is theoretical in the sense that it asks the reader to suspend his
point of view, and to try specic different ways of thinking about legal
problems. Chapter 6 attempts to locate exact junctures in judgment that
can be self-defeating, and to suggest specic different ways of analyzing
those critical junctures. Chapters 5 and 6 concern bad habits of legal
reasoning, and attempt to inculcate more productive habits.
Chapter 7 is about delusion, and the ways that varieties of delusion
preclude social progress. That chapter is titled False Consciousness
because that is a specic term that has in past debatesquite unneces-
sarilyreduced the momentum of legal feminist progress. A general
analysis of delusion, I believe, is necessary in a postliberal, postmodern,
postfoundationalist world. If individual perceptions and preferences
12 | Introduction

arent the answer to all social problems, how can that be conveyed, and
how can anyone go about describing any alternatives?
Chapter 8 explores the future of legal feminism by engaging post-
structuralist/postmodernist/postfeminist challenges to it, in the context
of ongoing legal disputes. In that chapter, I list many points of agree-
ment between feminists and postfeminists, in pursuit of nding more
productive ways of discussion.

Content of Book
Up front, I need to note four things about the content of this book.
First, I use the collective pronoun we many times. In most of those
usages, I believe that the context illuminates the group referent, such
as we lawyers. In other cases, the we refers to the collectivity of
author and readers, those of us who are engaging with the words Ive
put on paper. I have tried not to assume agreement from readers, nor
any characteristics of readers that implicitly belittle their points of view.
Most controversially, I sometimes use the pronoun we to refer to
groups of people substantively affected by law because of group status.
Those wes are the groups with whom I identify: women, lesbians,
outsiders, feminist lawyers working together since the 1970s, chil-
dren of the 1960s, and political progressives. Those groupings are not
to essentialize anyone or any groups of people but to indicate my belief
that group statuses are real. Any groups may be constituted only provi-
sionally, but various groups are also treated differently and often cru-
elly. Nothing that I can say about law or social progress makes sense
unless the reader will allow for the social reality of groups and some
established linguistic shortcuts to discuss them.
Second, the main focus of my jurisprudential discussion is adjudi-
cation, both actual cases decided by courts and the criteria by which
courts go about making such decisions and maintaining at least the
appearance of legitimacy in doing so. Though this focus on adjudication
is very much in the mainstream of Anglo-American jurisprudential liter-
ature, I agree with other scholars who say that we tend to weigh adjudi-
cation too heavily among legal institutions. At the same time, though
Ive been a drafter of legislation, a legislative witness, and a participant
in a wide array of political actions, my primary eld is adjudication. I
probably couldnt write a share-purchase agreement to save my life, but
Introduction | 13

I know how to litigate cases and I enjoy working on those that have a
chance of making law better.
Being a child of professors of history and government during the
Warren Court era meant that the characters in my bedtime stories were
more likely to be named Thurgood than Thumper. Perhaps those happy
memories are what lead me to agree with Richard Rorty that, as our
executive and legislative branches become ever more corrupt and friv-
olous, the judiciary is the only political institution for which we can
still feel something like awe.23
Third, this book makes many references to the work of Professor
Catharine A. MacKinnon. Some helpers have suggested that those refer-
ences alone could put readers off. Before critics dismiss the book solely
on that ground, I would ask them to consider why they would do so.
Even those who vehemently disagree with MacKinnon must acknowl-
edge that much contemporary legal theory is inspired by her work or
transpires in (sometimes saliva-sputtering) response to her work. As a
purely academic matter, it is distressing to me how MacKinnon has
been caricatured. I have observed, again and again, how often MacKin-
nons critics have not read her writings, or not read them with care, or
have failed to reread those works as circumstances required. I will leave
to a later time why MacKinnon inspires as much hatred as admiration.
One doesnt have to agree with everything MacKinnon says. Rather,
one needs to understand, paraphrasing Alfred North Whiteheads char-
acterization of European philosophy as a series of footnotes to Plato,
that much of contemporary United States jurisprudence is connected to
MacKinnon. No serious treatment of feminist legal theory can fail to
engage her work.
Fourth, although perhaps I write about courts too much, I write too
little about what U.S. lawyers, judges, and teachers can learn from other
countries. To the rest of the world, the United States appears both insu-
lar and imperialistic, and that is true jurisprudentially as well as in more
dire and dramatic contexts. Judges in other countries, less directly af-
fected by U.S. military and commercial might than other actors, have
the institutional freedom to reject our analyses and calcied assump-
tions.24 I have no nationalist stake in being a jurisprudential beacon to
the world, but I am embarrassed by both the rate at which the U.S.
legal system makes itself irrelevant to the rest of the world and the de-
gree of indifference U.S. lawyers and judges show toward catching up.
More important, in our self-absorption we are undoubtedly spinning
14 | Introduction

our wheels, acting both inefciently and unjustly when there alternative
ways of implementing the Rule of Law. Im trying to absorb infor-
mation and inspiration from elsewhere; my next project will be more
directly concerned with those lessons.
Some years ago, a Super Shuttle van took me to the San Francisco
airport. Airport trips are not anyones favorite activity. On this one,
though, trafc delayed us on Lombard Street, billed as the steepest,
windiest road in North America. The stalled van felt as if it were per-
pendicular to the earth. The otherwise silent driver said, At least were
doing something interesting.
Law school is a special hell of anxious drudgery. Many lawyers
would not wish their fate on their children. Ive heard more than one
judge wish out loud for a unique case and/or the company of talented
counsel. Though part of this system, I feel lucky to be a teacher, to take
only the cases I wish to take, and to be genuinely enthralled by the
kinds of ideas addressed in this book. I cant promise the reader Lom-
bard Street, but I hope to provide something of interest, and to transmit
a bit of my keenness for these topics.
part i

Places of Stuckness
Roles, Rules, Facts, and the Liberal
View of Human Nature
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1

The Rule of Law

Conscience is but a word that cowards use,


Devised at rst to keep the strong in awe:
Our strong arms be our conscience, swords our law.
March on, join bravely, let us tot pell-mell;
If not to heaven, then hand in hand to hell.
William Shakespeare, King Richard III

There is no concept more central to the American experi-


ment than the rule of law. We all somehow accept it as the corner-
stone of the republic. The rule of law comes to us, seemingly, in
mothers milk. Given its centrality, it is interesting how little agreement
there is about its meaning.1
Ive contributed to this conventional lack of examination. For ex-
ample, during the summer preceding President Nixons resignation in
1974, I was seated at a shipboard table with an Italian gentleman. At
every meal, he pressed me to explain why Americans were so agitated.
Government, he said, was all about corruption and scandal and cover-
ups and moving on to the next government. Could Americans really be
so naive and/or so self-righteous? I had just graduated from college but
hadnt learned how exactly to respond to his persistent questioning
about the nature and excesses of government. Eventually, however, the
magical term leapt to my lips: even the President, I said, had to be sub-
ject to the rule of law. I stuck to some version of that utterance for the
rest of the voyage. The Nixon saga required no further justication
from me. Nixon was not criminally indicted, and didnt need to be im-
peached because he resigned. It was as if Nixon himself and all the rest
of us (including a unanimous Supreme Court)2 were following a script
learned in junior high school. It was as if we all knew what the rule of
law was, what it required, and how it might be damaged if Nixon had
refused to listen to the Supreme Court.

17
18 | The Rule of Law

That worked out relatively smoothly, but Ive subsequently realized


how often the phrase rule of law substitutes for serious discussion of
the most basic question of jurisprudence. What does it mean for an
utterance to be called law? Is it just any old thing that a legislature or
king says? Perhaps a simplied spectrum can convey the problem. On
one extreme, was Richard III right that law is just the sword of cow-
ards, or those who cannot otherwise win inevitable contests of raw
power? On the other end, is law by denition (or only by aspiration)
more majestic? Does the ideal of law bring with itdare I say itmat-
ters of conscience, or morality, or justice? Are there any basic principles
conveyed by allegiance to law?
All of the possibilities are implied in contemporary rule of law dis-
course. Consider three examples. The rst is the impeachment and trial
of President Clinton, a gavel-to-gavel transcription of what was proba-
bly the most extended rule of law twaddle in American history.
Throughout those proceedings, the term was used more than ve hun-
dred times, almost equally by proponents and opponents of impeach-
ment.3 Among proponents of impeachment, Representative Stephen
Buyer (R-Indiana) contrasted the rule of law to the rule of kings, ty-
rants, czars, monarchs, emperors, chiefs, sheiks, lords, barons and lords
[sic] and even nobles. As applied to the case at hand, which rested
largely upon the Presidents alleged perjury in a civil deposition, Repre-
sentative Buyer stated that the rule of law is absent [w]hen plain spo-
ken English language is twisted into the vague and ambiguous. . . .4
Representative Henry Hyde (R-Illinois), the House Impeachment Man-
ager, intoned that the rule of law is no pious aspiration from a civics
textbook. Rather, it is like a three-legged stool. One leg is an honest
judge, the second leg is an ethical bar, and the third is an enforceable
oath.5
The Presidents lawyers, on the other hand, opined that the framers
of the Constitution did not intend impeachment to be a means to en-
force every conceivable provision of the criminal law. The criminal
law could do its business in the ordinary course as necessary, once the
Presidents term expired. In their view, the rule of law argued more
forcefully for upholding the results of elections.6 Crucial to the Presi-
dents argument was that proportionality is a concept central to the
rule of law; to impeach would be a disproportionate response to what-
ever the President had done.7 President Clinton was impeached by the
House of Representatives, but not convicted on the Articles of Impeach-
The Rule of Law | 19

ment by the Senate, so was not removed from ofce. I just wonder
whether discussion of the rule of law added anything to the proceedings
or to our understanding of the constitutional requirements for removal
of a President.
As a second example of recent rule of law rhetoric, consider that the
phrase is enjoying a new run as a rising imperative of the era of glob-
alization.8 The rule of law is touted as a panacea for a huge range of
ills in what commentators used to call developing nations, but now
call emerging markets. The good news about the rule of law is that
hardly anyone these days will admit to being against [it].9 But that
very irresistibility may mask a destructive manipulation. Different play-
ers are likely to dene the rule of law in ways that advance their inter-
ests. There is a vast literature about what aspects of the rule of law
should be emphasizedand fundedas the United States includes de-
mocracy among its requirements for foreign policy patronage. It turns
out that the export version of the rule of law has more to do with get-
ting other countries to establish courts that will enforce contracts for
U.S. investors10 than it has to do with the equal protection of the laws
for citizens of those countries.
Third and nally, the rule of law has recently had exposure both as
a reason for war and a reason for lawlessness in war. The original justi-
cation for the use of preemptive military force in Iraq in 2003, the
elimination of weapons of mass destruction, has evaporated. That
justication may even have been manufactured by latter-day princes of
the military-industrial complex. When no weapons of mass destruction
were found, the justication for war mutated. The new justication was
to bring democracy to the people of Iraq. According to the executive
branch, fostering the rule of law is both an essential element of democ-
racy and a means for combating terror.11
At the same time, the rule of law seems not to apply to the libera-
tors. On February 7, 2002, President George W. Bush signed a memo-
randum declaring that the Geneva conventions, the international law of
war achieved in 1949, did not apply to the U.S. invasions of Afghani-
stan and Iraq, or to the treatment of prisoners taken in those conicts.12
It has since emerged that United States military personnel committed
grievous abuses of war prisoners.13 A number of service people are now
on trial for these abuses, but it remains to be seen whether any execu-
tive branch ofcials will be charged with war crimes. At least some in
that branch have been concerned that such charges are possible.14 What
20 | The Rule of Law

emerges is a picture of executive actors who, only after public discovery


of their actions,15 are rushing to assign legal blame while having laid the
groundwork for exempting themselves from responsibility.
This book is not about political shenanigans or U.S. foreign policy.
Examples like these can be taken from the front page of the paper on
any morning. In light of examples such as these, though, one wonders
whether the rule of law means anything. Perhaps, as Professor Judith
Shklar suggests, the phrase has become just another of those self-con-
gratulatory rhetorical devices that grace the public utterances of Anglo-
American politicians.16 Perhaps, whenever you hear the phrase, you
could delete the rst two words. Is there any difference between the
Supreme Courts statement that the Presidents evidentiary privilege
must be considered in light of our historic commitment to the rule of
law,17 and an edited version, instead stating that a privilege must be
considered in light of our historic commitment to the law? Does the
rule of law indicate only a logical regress, as if we were to say, rule
number one is to obey the rules, and rule number two is to obey rule
number one? Is there a rule of the rule of law? Or a rule of the rule of
the rule of law?
Some have argued that it is time to junk the rhetoric of the rule of
law; I am not prepared to do so. If law is just a fools game, as Richard
III argued before his demise, too much energy has been wasted. Those
stakes are too high for me. Law seemed the remedy for my rst social
heartbreak, when I heard as a kid that the city of Jackson, Mississippi,
would rather close all its public swimming pools rather than give access
to African-American people.18 The road away from summer misery in
my Oklahoma hometown was the road to the public pool. I did not
know then about the complexities and inefciencies of law, but I did
know that I would try to thwart similar efforts of mean-minded control
freaks.
I suspect that legal aid lawyers, public interest lawyers, and indeed all
lawyers and judges who resist the harmful effects of arbitrary power
have a story regarding what originally brought them to their careers. I
expect that all of these professionals could articulate coherent distinc-
tions between mere law and the rule of law. It is just that we are
not asked; we dont often have occasion to think it through.
Lets start at the beginning of ones legal career. It is still the conven-
tion in U.S. law schools to make students buy textbooks containing
appellate opinions concerning the subject of the course. The books vary
The Rule of Law | 21

primarily on the ratio of cases to materials, that is, on how much


statutory and regulatory stuff the authors throw in, and how much
explanatory material and questions for discussion they provide. Some
classic cases will always be included, but otherwise there will be some
differences among cases in each book. The editing of cases will differ as
to both length and coherence.
Ive always been amazed by how little explanation the textbooks give
for inconsistency among cases. Back-to-back entries on the same topic
often have diametrically opposed results. Sometimes the reasons for that
are simple, such as origination in different jurisdictions having different
laws. Sometimes the cases just come from different eras, and we are
accustomed to regarding beliefs from the olden days as loopy. But the
average textbook gives little information about why thinking changed,
or why legal thinking yields different points of view in the same case
(as in majority versus dissenting opinions), or, indeed, what counts as
sound legal thinking in the rst place. Hence the much-commented-
upon mystication of the legal system by the legal education establish-
ment. In my experience, legal education most rewards the students who,
usually for reasons of their own histories of privilege, just get it without
too much disclosure or exertion on our parts.19
I dont think law school is particularly fair or fun. The traditional
curriculum is very difcult to change, an indication of how well it pro-
tects those power relations in society. There are many innovations, of
course, that individual teachers can bring to individual courses. One
thing I constantly urge is that students investigate the assumptions
underlying any judicial opinion. I dont mean to consider whether the
judicial author is a Republican or a Democrat, or where the judge went
to law school. I dont mean to focus on any psychohistory, that is, to
investigate whether this judge is notably cranky or mellow, eager or
cautious, optimistic or depressed, oblivious to privilege or still angry
about his conrmation hearings, or anything like that. Rather, I want
students to begin to think about larger questions that are part of deci-
sion making, that is, this judges attitude toward the limits of knowl-
edge, the possibility of doing ethical good works, and the myriad as-
pects of reliable governance of society. In short, I want them to begin to
think about the possible connections among legal-decision making and
persistent philosophical questions.
I think students want to believe, as many in the law business believe,
that judges are just following rules. But that generally is not so. If a
22 | The Rule of Law

precedent or statute or regulation clearly decided the dispute, the case


wouldnt exist. For there to be a reported appellate opinion, there must
be litigants who have their own nancial resources or insurance com-
pany backing, and there must be disagreement about interpretation of a
rule or standard for which there are plausible arguments on both sides.
This, I tell my students, is where the rubber meets the road. I believe
that important cases actually turn on conicting philosophical assump-
tions beneath the legal arguments. A competent lawyer is aware of all
this going on. A capable judicial system does not shy away from un-
packing the assumptions at work.
Many traditional jurisprudence courses are organized around the
basic questions I noted above. What is law? What makes a system a
legal system? Can we distinguish between legitimate and illegitimate
uses of law? These are not mere abstract musings. The great questions
of the day, from the validity of the use of military power to the alloca-
tion of authority to decide national elections, are at bottom questions
about legal legitimacy.
Some years ago, I wrote that law is second-rate philosophy backed
by the force of the state.20 There are several aspects of that charac-
terization that deserve further explanation from me. Lets start with
backed by the force of the state. Almost all Western political thought
grows from the assumption that a fundamental task of society is to con-
trol violence. At the same time, almost all Western political thought
assumes that force cannot be completely eliminated.21 The permanently
contested question is when violence will be socially sanctioned. The list
of contexts where society allows violence toward people is very short:
war, sports, and law.22
I left philosophy for law because I wanted the world to be more just,
and felt that some changes required coercion. I liked law because it can
make itself stick.23 Police are entitled to use force to keep order and to
apprehend suspects. If you dont pay your parking tickets, the cops will
come and get you and drag you into court. If I dont give you money as
agreed in a contract, you can eventually get the sheriff to come out and
take my stuff. If I kill someone, I can be forcibly imprisoned or even put
to death. When we have obligations imposed by law, we fail not at our
peril. The existence and scope of a legal obligation is therefore always
in need of justication.
Both law and philosophy are about debate. Both are discursive enter-
prises that rise and fall on arguments. The arguments matter more in
The Rule of Law | 23

law, at least in the short term, because law is backed by force and phi-
losophy is not. In order for the social sanctioning of legal force to kick
in, law has to give reasons. The reasoning happens in different modes,
with different levels of formality and compunction. Policemen have
to explain their probable cause for arrests. Legislators produce a
plethora of reasons to vote for or against bills. When the mayor stands
for reelection, shed better explain what that ugly statue in the park was
about. Trial courts sometimes and appellate judges almost always gen-
erate highly stylized accounts of their actions. The degree of persuasive-
ness of the reasons given for any legal decisions correlate with the
perceived legitimacy of law.
It turns out that legal arguments are closely akin to familiar philo-
sophical arguments. With few exceptions, Western philosophy has re-
volved endlessly around three questions: What can we know? How
shall we act? How shall we govern ourselves in society? These are the
problems of epistemology, ethics, and politics. It is obvious why philo-
sophical debate is endless. On the epistemological front, there is no way
nally to be certain what is in the universe (quarks? God? perfection?)
because there is no ultimate criterion for verication of the information
available to us. Getting on the subway is essentially an act of faith.
Regarding ethics, I have a general sense of when people act well and
when they act badly, but there is a large and constantly shifting gray
area. In any ethical context, there can be extended respectable debate,
and there will never be certainty about what is the right thing to do.
The same point about politics is elementary. Politics is a perpetual con-
test among conceptions of a good society and methods for achieving it.
Consider this experiment regarding the correspondence between legal
arguments and philosophical problems. Close your eyes and point to
any case in any casebook. In it, youll likely nd a dispute about a fact
(an epistemological issue), a dispute about the quality of an actors in-
tention (an ethical issue), and/or a dispute about the authorization for
(a category that includes the possible interpretations of) an exercise of
legal power (a political issue).
I know that there are differences between law and philosophy. Given
the correspondence among categories of issues addressed by the disci-
plines, however, perhaps we can agree that law is a department of prac-
tical philosophy. It is not the bricks-and-mortar parts of law, however,
that led me in my perhaps too terse youth to refer to law as second-
rate philosophy. What, in my view makes law an inferior explanatory
24 | The Rule of Law

enterprise is its pretense that it doesnt have to have any opinion regard-
ing hard metaphysical questions.
Of course, each discipline or set of disciplines has its own conven-
tional assumptions and protocols for change.24 Each discipline has its
own institutional reasons for its posture toward uncertainty. Law, for
example, cant put away debate for another day. I have a fantasy of
being a judge, and when the parties turn to me after six months of a
bench trial, I throw up my hands and say, Beats the hell out of me!
But I couldnt do that. I may make my ruling very narrow, or hope that
appellate courts or the legislature will x my mess, or I may yearn for
an opportunity to revisit my decision, but I cant just refuse to decide
the matter before me.
In deciding, and in having force at my disposal to enforce a decision,
however, Ive got to recognize that my enterprise is contingent. Forces
of nature arent the determinants of my task. Im not challenged to nd
a cure for HIV/AIDS. Of course Im not writing on an entirely clean
slate, either, but it only diminishes the endeavor for me to pretend that I
am not a participant in a wide-ranging ethical debate about the require-
ments of a good society.
An English barrister once said that lawyers could no doubt reform
their education and training, reform the practice and processes of law,
even reform the law itself, if they felt like it. But probably they will not
feel like it.25 Indeed, there is some inherent conservatism in the institu-
tion of law; it is structured to resist sudden and constant change. But, in
light of lawyers considerable power to invoke the force of the state,
surely we ought constantly to be assessing the necessity and scope of
our disciplines conservatism. And surely we ought be taking inventory
of the emotional and political habits that make us not feel like doing
better.
Returning to the big questions of jurisprudence described earlier
beginning with what makes law lawlets consider another spec-
trum, related to the one I proposed earlier that had Richard III at one
end and justice at the other. This version has lots to do with the
dichotomy between certainty and doubt, discussed more broadly in the
next chapter. Natural Law is at one end of the spectrum (the cer-
tainty end) and the legal positivist tradition is at the other (the doubt
end). Some in the natural law tradition would insist that an unjust law
is not a law. There is an obligation, both moral and legal, for citizens
The Rule of Law | 25

to resist those unjust commands. In natural law thinking, there is a


divine or naturally existing law that supersedes all man-made law, and
heres where the certainty aspect comes saliently to bearwe can
discover what that higher law requires of us. At the other end of the
spectrum, legal positivism holds that even if there is such a higher law,
there is no way for mere mortals to comprehend in a given situation
what it requires. Positivism means that we regard as law only that
which was positively enacted, made, done, brought into black-and-
white being on a sheet of paper by whoever has the earthly power to do
so. In that view, civil order requires that in legal matters we look only to
what duly constituted authorities tell us. As the legal philosopher John
Austin famously wrote in 1832, The existence of the law is one thing;
its merit or demerit is another.26
Try saying these statements out loud. An unjust law is not a law.
Now say, The existence of the law is one thing; its merit or demerit is
another. I suspect that you can imagine hearing the rst statement on,
say, talk radio, but not in a courtroom. The second statement, however,
underlies arguments made by judges and lawyers every day. Weve been
well taught: the merits of the case have nothing to do with any larger
senses of goodness, conscience, justice, or survival. We are consumed
with discerning merely what the law is.
The bigger and always pending question is how we might evaluate
the existing law, with an eye to what the law should be. Is there any
way to distinguish between bad law and good law? How can we talk
about that? I believe that this distinctionbetween law and good law
is what were getting at in talking about respect for the rule of law as
opposed to unreasoning, robotic, selsh obedience to the law as it is.
It is not only ivory-towered academics who presently worry about
the rule of law. A discourse authored by United States Supreme Court
Justice Stephen Breyer is illustrative. He proposed a series of cases to
illustrate his vision of development in the rule of law. In historical order,
the rst case he notes is Worcester v. Georgia,27 decided in 1837. This
particular case, though just a snapshot in the ongoing mistreatment of
Native people, is famous as an example of executive branch deance of
judicial authority. The Supreme Court held that the laws of the State of
Georgia (which was attempting to drive Indians off their southeastern
homelands) could have no effect on the Cherokee Nation. Nonetheless,
both the state of Georgia and the United States refused to enforce that
26 | The Rule of Law

holding, eventually allowing federal troops to put the Cherokees and


other eastern tribes on the Trail of Tears out of that part of the United
States.
My ancestors were on that trail to the Oklahoma territory. The new
lands were also eventually stolen from the tribes. Family legend has it
that my grandfather was three days old, swaddled in the back of a
wagon in 1889, as his parents waited to nd a new farm on the morn-
ing of the Oklahoma land rush. I do not know whether they retrieved
as much land as they had been forced to abandon. Oklahoma is cele-
brated as the Sooner State because so many people went under the
wire sooner than they were supposed to and gobbled up a lot of the
good land.
In Justice Breyers list of illustrative cases, next historically is Cooper
v. Aaron,28 the 1958 case in which the Court told the Governor of
Arkansas that he could not stand in the schoolhouse door to prevent
racial integration of public schools. After the Cooper decision, the Pres-
ident of the United States dispatched federal troops to Little Rock to
keep the schoolhouse doors open. In subsequent speeches, Justice Breyer
has added to his list the matter of Bush v. Gore,29 the 5-4 decision after
the 2000 presidential election that awarded the electoral votes of Flor-
ida, and thus the presidency, to George W. Bush.
I believe Justice Breyer wants us to note that in the 1837 example,
troops were deployed against the decision of the court; in the 1958
example, troops were deployed to enforce the decision of the court;
after the 2000 Bush case, although as notorious as any decision of the
United States Supreme Court, no troops were deployed on either side,
and no para-military-Democrats (though it is a stretch even to imagine
them) took to the streets with guns.
I do not think Justice Breyer is telling a simple story, because the
story of the rule of law cannot mean only diminishing violence after
judicial actions. Surely, Worcester v. Georgia was not not law, just
because it couldnt immediately be enforced. Just as surely, Bush v. Gore
was not good law just because it produced no blood in the streets.
Justice Breyer does not think that is all there is to it. Instead, our consti-
tutional system consists of habits, customs, expectations, settled modes
of behavior engaged in by lawyers, by judges, and by citizens, all de-
veloped gradually over time. It is that system, as actually practiced by
millions of Americans, that protects our liberty.30 But where do these
habits, customs, and expectations come from? Perhaps we should worry
The Rule of Law | 27

about how little it takes for the legal system to command so much tal-
ent and dedication. Perhaps we have been bamboozled.
Professor Duncan Kennedy has noted several unhappy consequences
of blind faith in the rule of law. For one thing, legal discourse main-
tains the pretense that judges dont ll gaps and ambiguities in law with
conscious, half-conscious, or unconscious ideology.31 We judges and
lawyers are obligated to wear our neutrality outts, but that attire pro-
claims that law is just, natural, and necessary.32 However, we all know
in our hearts that politics pervade the law. And, according to Kennedy,
because that is common knowledge, lawyers and judges are operating in
bad faith, in the Sartrean sense of allowing ourselves to live in pro-
tracted denial.
Most good lawyers know this. When we act as if a judges decision
awaits legal and factual data, while knowing exactly what that particu-
lar judge will decide, we are consciously deceptive players on that stage.
But I think Kennedys analysis is somewhat reductive. It doesnt account
for the persistent fact that not only do we muddle through but that we
do soat least occasionallyin an aspirational gear. Ive known great
lawyers and great judges who are smart and sophisticated and making
the world a better place. They understand the contradictions in our
enterprise. They know how serious it can be, and the degree to which it
is and is not in our hands.
If the rule of law is more than a sedative, more than a means to dis-
courage those trained in law from becoming effective political actors,
what should it mean? Are there any necessary ingredients to the rule of
law? Not surprisingly, we can choose from a large range of recipes. In
1885, English scholar A. V. Dicey brought the term rule of law into
the vernacular. In Diceys view, it required three things: the supremacy
of law over arbitrary power, the subjection of all classes to law, and
judicial determination of legal controversies.33 More recent versions are
variations on these central themes, some requiring only ve ingredi-
ents,34 some identifying up to fourteen.35
The most famous list of aspects of the rule of law is from Professor
Lon L. Fuller. Professor Fuller wrote in the postWorld War II period,
when most scholars wanted to give a narrow interpretation to the reach
of the law. I dont wish to caricature a rich jurisprudential era, but one
might say that the question was, what sort of legal system might have
resisted the rise of the Third Reich, or might prevent the rise of such a
regime in the future?36 World War II was a powerful motivator for the
28 | The Rule of Law

age of legal positivism and later jurisprudential efforts that focused on


procedure as the meaning of justice. The Third Reichs ideological fun-
damentalism intertwined with a number of legal steps in cementing
Hitlers power. Most legal scholars on the victors side therefore advo-
cated a jurisprudence that was value-free, distant from foundational-
ist philosophical systems, and thus distant from anything smacking of
moral authoritarianism.
I admire Fuller because he was prepared, in that antifoundationalist
age, to say that the law had to mean something more than the actions
of duly constituted power and/or formal rules of procedure. He used the
words law and morality together, in insisting that at a minimum,
to deserve respect as a legal system, a regime had to exhibit the inter-
nal morality of law.37 It is worth reviewing Fullers admonitions in that
regard because they constitute much of what I mean by the rule of law.
According to Fuller, the internal morality of law has eight attributes.
First, the law must be general. The requirement of generality means that
both individuals and governmental entities (and, realistically, we should
add corporations)38 must be subject to laws, but also and equally im-
portant, that the laws cover classes of conduct, as opposed to one
instance of conduct. This latter notion is implicit in the idea of a rule.
When I tell my child to eat his peas, the rule at work is not that he
shall eat peas, only and always. The rule is that I get to have consider-
able control over his dietary intake, at least while he is a child.
Second, the law must be made public, its requirements made accessi-
ble so that people can know what is expected of them. If the legislature
votes that taxes will be due on a date earlier than in the past but keeps
this new law secret, the law will simply not work to achieve its intended
purposes (whatever they may be).
Third, with very few exceptions, the law must operate only prospec-
tively. I cannot guide my conduct if the legislature is in the habit of en-
acting retroactive laws. Deciding today that citizens must have licenses
for their dogs by yesterday is not a good way to achieve the purpose of
animal control.39
Fourth, the published law must be expressed with reasonable clarity.
Perfect clarity is often unattainable; indeed, laws often and wisely in-
corporate inexact standards such as a requirement of acting in good
faith. But at a minimum, the law cannot be incoherent. No purpose is
achieved by requiring, without further denition, that all persons seek-
ing to do business in this state must gahootenaire.
The Rule of Law | 29

Fifth, the laws must be internally consistent. Fuller uses the example
of a legislature saying, in one enactment, that automobile license plates
must be afxed on January 1st, and in another enactment, that it shall
be a crime to perform any physical labor on that day.40
Sixth, a law must not be impossible to comply with; it must be prac-
ticable to obey. Some laws are logically impossible to obey, such as a
requirement that all prospective persons must declare their own legal
names before birth. Some laws are only practically impossible. Suppose
the legislature says that all children, at their peril, must be capable of long
division by the age of twelve. That level of mathematical competence may
be a laudable goal, but it cannot be achieved by naked legal command.
Seventh, the law must be relatively stable, not continuously and ran-
domly changing. This concern is conceptually related to the ve attrib-
utes of a legal system just described: one cant conform ones conduct to
law if one cannot discern at a given moment what the law is. Laws
change, of course, like everything else. But lawmakers and administra-
tors are rightly if sometimes overly concerned, in doctrines such as stare
decisis, about not changing the laws too much or too often.
Finally, there has to be congruency between the words of the laws
and their actual administration. Fuller notes that this is the most com-
plex requirement of the internal morality of law because so much can
go wrong between declaration and implementation, for reasons both
innocent and sinister. These are the vital problems of both lawyering
and legal theory.41
It has become commonplace to dismiss Fullers list as another exam-
ple of proceduralist ight from hard questions, as a mere reiteration of
what U.S. lawyers understand by the term due process.42 I believe,
however, that the conventional dismissal misses Fullers emphasis on the
ethical pursuit at the heart of legal systems. In the rst place, what
lawyers contest as due process is a highly ethical enterprise, and it is
not completely indeterminate. What we understand as due process is
not a free-for-all; it has to do with conceptions of fairness that are, may
I say, essentially ethical.
In any case, and relatedly, Fullers internal morality of law corre-
sponds to the conventions of ethical discourse. Acting in good faith,
we do have sustained discussion about all sorts of important issues for
which there are not and never will be clear, nal, uniquely right an-
swers. The rules of discourse are indicia of good faith but are pointless
in themselves. When contestants engage, we have to have ways of
30 | The Rule of Law

knowing what we are discoursing and contesting about, around, for,


and toward. In one of my favorite quotes, Fuller and a coauthor stated,
We are still all too willing to embrace the conceit that it is possible to
manipulate legal concepts without the orientation that comes from this
simple inquiry: toward what end is this activity directed?43
I ask myself that question many times each day. If it doesnt always
lead to guidance, at least it provokes thought on questions ranging from
getting out of bed in the morning to sorting the laundry to deciding
whether to represent a particular client. This interrogative practice has
been therapeutic because I am otherwise disposed to legal thinking of a
sort also described by Fuller. He quotes Professor Thomas Reed Powell
as saying that if you can think about something that is related to some-
thing else without thinking about the thing to which it is related, then
you have the legal mind.44
I think this has less to do with an inherent quality of law, or a pre-
dictable aspect of legal training, than with a destructive habit that U.S.
lawyers in particular have become accustomed to: talking about every-
thing except what is really at stake. Consider the example of Hill v.
Colorado,45 in which the United States Supreme Court rejected a free
speech challenge to a speech bubble statute. The state law at issue
provided criminal and civil remedies against those who leaeted, pro-
tested, or counseled within eight feet of a person entering a health care
facility. Upholding the statute hinged on a nding that it was con-
tent neutral as to expressions restricted. In the majoritys words, the
statute applies equally to used car salesmen, animal rights activists,
fundraisers, environmentalists, and missionaries.46
This sounds like the punch line of a lawyer joke, because the legisla-
tive record clearly showed that the Colorado Assembly wanted to pro-
tect women seeking abortions.47 The enactment could not have been
more viewpoint specic. The legislature could not have worried less that
a used car salesman might increase patient anxiety by selling cars or
encouraging wart removal or anything else.
So let us ask, toward what end was that activity directed? The
Hill decision disgruntled both liberal and conservative commentators,
among the former group because it seemed to violate various First
Amendment principles, among the latter group because it seemed to
restrict efforts of antiabortion protestors.48 I dont belong to either
group. I believe that the result in Hill was a good oneto allow for leg-
islative protection of women entering abortion clinicsbut was accom-
The Rule of Law | 31

panied by a terrible rationale: pretending that abortion protesting is just


like any other speech. It isnt. If there were frank exchange about the
worthiness of purpose, the United States Supreme Court could have
applied a higher level of scrutiny and still upheld the statute because of
the magnitude of the female patients interest in securing an abortion
without fear of interference. Our professional conspiracy to avoid full
airing of purpose sets up the powerful to reverse reality, as when Justice
Antonin Scalia referred to abortion as a highly favored practice.49
That kind of rhetoric takes hold, and we allow it to do so when we
dont insist upon candid discussion about what lawthe bubble law or
any otheris really there for.
Teaching in Canada in 1993 changed my life because I saw pur-
posiveness in action. In constitutional cases, Canadian courts to their
credit regularly refer to decisions in other countries, most often from
those in the United States, and then do or dont follow those examples
depending on the Canadian commitment to purposive interpretation.
Thus, in a matter similar to Hill, a provincial legislature didnt have to
fake neutrality, and could actually name its work the Access to Abor-
tion Services Act. The reviewing court could uphold the legislation,
while being blessedly frank about the competing interests at stake. Yes,
the act was a modest imposition on free expression but that interest in
that particular context had to give way to the interests of women seek-
ing abortion, concretely understood with appreciation of actual harms
to women done by the protestors.50
In this book, I postulate that all legal actors would be happier if we
frankly and perpetually asked, Toward what end is this activity di-
rected? Let me put it in starker terms. The law is already necessarily
about its ends, if the law is to command any loyalty at all. In the United
States, women and slaves were not part of constituting our vaunted rule
of law. What happens now that those groups, formerly excluded, and
all the other others, have ostensible voice? Isnt loyalty a two-way
street? Nothing less than justice is at stake. What I mean by the rule of
law includes all of Fullers ethical commitments, as well as conscious-
ness of former exclusions and the requirements of inclusion now. With-
out all of that, the rule of law has no compelling meaning.
Naturally, the questions become how to identify groups, ends, and
other commitments that might lead to anything that anyone would call
justice. Because of that difculty, I turn in the next chapter to the prob-
lem of certainty, and the inevitable afiction of doubt.
2

Certainty and Doubt

[T]here aint any answer, there aint going to be any answer, there
never has been an answer, thats the answer.
Gertrude Stein

In chapter 1, I suggested that something called justice was


at stake in our relationships to the rule of law. If you have been (or are
being) well trained in law school, you are probably wondering where I
come off using that word. In response, I would ask you how we acquire
the habit of running from justice?
A student hasnt had to read too many opinions in law school before
she realizes that the strategy for each judge is to show that his position
better reects what the law really is. The persuasiveness of opinions
depends upon the standard of delity to law, measured by indicia of
technicality and deductive, impersonal reasoning. Thats what makes
them opinions rather than outbursts. The usual message of any opin-
ion is the law made me do it. Dissenting judges in appellate cases
make parallel arguments. Dissenters score points by arguing that major-
ity opinions are either an incorrect application of existing law, or are
not really loyal to some aspect of existing law, or are nothing more than
products of that most feared of all evils, judicial subjectivity.
In the United States Supreme Court, this game is played over and
over again. The most famous example is Justice Holmess dissent in
Lochner v. New York. In a blow for freedom of contract (or for ex-
ploitation of labor, depending upon your point of view), a majority of
the Court had invalidated a state statute that limited working hours for
bakers. Dissenting, Justice Holmes immortally drew the sword of judi-
cial restraint:

This case is decided upon an economic theory which a large part of the
country does not entertain. If it were a question whether I agreed with

32
Certainty and Doubt | 33

that theory, I should desire to study it further and long before making
up my mind. But I do not conceive that to be my duty, because I
strongly believe that my agreement or disagreement has nothing to do
with the right of a majority to embody their opinions in law. . . . [A]
Constitution is not intended to embody a particular economic theory,
whether of paternalism and the organic relation of the citizen to the
state or of laissez faire. It is made for people of fundamentally differing
views, and the accident of our nding certain opinions natural and
familiar, or novel, and even shocking, ought not to conclude our judg-
ment upon the question whether statutes embodying them conict with
the Constitution of the United States.1

More recent cases use testier language. In 2002, a majority of the


Court held that execution of mentally retarded criminals is a violation
of the Eighth Amendments prohibition on cruel and unusual punish-
ment.2 Dissenting, Justice Scalia stated, Seldom has an opinion of this
Court rested so obviously upon nothing but the personal views of its
Members. . . . The arrogance of this assumption of power takes ones
breath away.3 Similarly in 2005, a bare majority held that execution
of criminals younger than eighteen years of age violated the Eighth
Amendment.4 Justice Scalia was not happy about this either, character-
izing the majority opinion as a mockery because constitutional mean-
ing should not be determined by the subjective views of ve members
of this Court and like-minded foreigners. . . .5 Scalia contrasted the
majoritys mirror of the passing and changing sentiment of American
society regarding penology with real law, real prescriptions democra-
tically adopted by the American people.6
Justice Scalia does not exactly pin down what makes his version of
the situation real law but rests his argument on the majoritys dreaded
subjectivity. Much has been written about Justice Scalias style. I wont
add to that commentary except to observe how often Scalias criticisms
sound like you throw like a girl. It isnt just Scalia who sometimes
invokes the judgely judge in the sky to shame wayward majority mem-
bers. These criticisms assume that everybody knows how real judges are
supposed to behave and this aint it. Indeed, the unjudgely behavior is
uffy-headed, slavish to fashion, and selsh, to be resisted just as femi-
ninity is to be resisted.7
This is a story that is replayed endless times in American law and
legal commentary. We are accustomed to seeing the story as a morality
34 | Certainty and Doubt

play, as the struggle between a judges personal ideology and the


angels of his objective better nature.8 But to retain this characterization
is both to concede too much ground to the bullies and to miss the un-
derlying metaphysical struggle, one that resonates in law and life on a
daily basis.
It was absolutely crucial for me as a young feminist lawyer to come
to grips with these story lines. I learned how unexamined certainty is an
invaluable attribute of privilege. Feminist and other progressive thinkers
throughout history have underscored how inequitable systems of su-
premacy sustain themselves by making their critics feel stupid, incom-
petent, and crazy.9 The best defense is to appreciate the centuries-old
struggle in human thought between certainty and doubt.

The Endless Debate


The endless philosophical debate between certainty and doubt can also
be called a debate between foundationalism and skepticism. This ten-
sion is represented in the preceding chapter in the description of ranges
of answers to the question What is the rule of law? There is no
choice, in studying or practicing law, but to grapple with the philosoph-
ical spectrum. To understand the nature of the arguments is a matter of
lawyerly competence, even if ones conclusion is that they are silly and
misleading arguments.
Foundationalism refers to philosophical schools that posit some
point of reliability (even certainty), some foundation on which we can
stand, when attempting to answer questions about knowledge or ethics.
These are the ways of understanding that depend upon a skyhook.
The most common foundationalist philosophies are empiricism and ra-
tionalism. Empiricism holds that what can be known is only that
which is available to our senses. We believe it when we see it. Most
people are happy with empiricism as a commonsensical explanation of
how they live their lives. The obvious problem with empiricism as a
philosophical position is that it would conclude that there is nothing
beyond what meets the eye. Empiricism would seem to deny the exis-
tence of, say, subatomic particles and the dormant commerce clause.
That is, when most people think about it, they are willing to admit that
at least in some situations, there is more than what meets the eye.
Rationalism refers to the set of philosophies that attempt to identify
Certainty and Doubt | 35

grids of meaning underlying or accompanying what can be seen. This is


called rationalism because it depends upon reasons for things. Thus,
subatomic particles could be understood as reasons for observable
objects like roller skates. The doctrine of the dormant commerce clause
could be understood as a reason that explains (and is a necessary part
of) a more general commitment to unimpeded interstate commerce.
Empiricism and rationalism are not necessarily mutually exclusive. I
have noticed, for example, that almost without exception, every time I
get on the subway, it goes. From this experience I do not deduce that I
cause the subways to run. Nor do I get on the subway car just hoping to
end up downtown. Rather, I bring to my empirical experience certain
rational powers that allow me to understand the explanation for this
transportation system and to manipulate it accordingly. Most people
proceed with their lives according to a fairly complex but usually un-
conscious model of interdependent empiricism and rationalism.
In contrast to foundationalism is skepticism, meaning any philosoph-
ical position that favors doubt over certainty. This includes lots of phil-
osophical schools as well as lots of political positions. As a general
matter, at least in my lifetime, doubt is hipper than certainty. It is easy
for skeptics to make anything other than skepticism look like either
gullibility or a power grab. Moreover, it is commonplace to assert the
superiority of doubt as a philosophical posture without entertaining any
doubt about the fundamentalism of that commitment.
At the logical heart of skepticism is the argument based on the in-
nite regress. It is simple to understand. At every alleged founda-
tional point in an argument, one can question that foundation. Take
the simple statement Here are my roller skates. The skeptic asks how
I know that. I respond empirically, that I see them. The skeptic asks
why Im connecting that alleged optic impression with the alleged pres-
ence of my alleged roller skates. Ill be astonished at the question, but I
could answer by drawing on my rationalistic habits. I could say that
seeing the roller skates has always reliably led to being able to use them.
The skeptic asks whether my experiences of both sighting and use
might not just be hallucinations. And so on and so on. I may think this
is a goofy conversation, but at some point I dont have proof of my
answer. Each successive level of justication is subject to doubt ad
innitum.
One doesnt have to be too skilled at argumentation to make skepti-
cal mincemeat of allegations of fact or necessity. At some point in the
36 | Certainty and Doubt

skeptical routine, however, one will begin to look like a bully. At some
later point, one will begin to look like a silly person, who is also a bully,
and who is not worth listening to. Persuasiveness in argument depends
in part on identifying those invisible lines, stopping before arrival at
them, and acting as if one were speaking sensibly all along.
No one has to choose once and for all between certainty and
doubt. There are many intermediate points along that continuum,
and multidimensional tangents that one could creditably take for spe-
cic purposes. Ive noted above that most people, by whom I mean peo-
ple in nonprofessional contexts who are counting on gravity to help the
rain go down the sewer, rely on a classical combination of empiricism
and rationalism.
Another common combination of philosophical positions, and one
common to law, is skepticism with empiricism. In a sense, those philo-
sophical big words describe some of the more formalistic decisions of
judges. An example is Justice Hugo Blacks dissent in Katz v. United
States.10 Every other member of the U.S. Supreme Court had agreed
that the constitutional prohibition on unreasonable searches and sei-
zures extended to wiretaps of conversations in telephone booths. Justice
Black noted that a general right to privacy does not appear in the Con-
stitution, and that the Court could not rewrite the Constitution in
order to bring it into harmony with the times. 11 Justice Black referred
several times to the plain meaning of language, as if searches or sei-
zures referred to some objects in the universe known to the authors of
the Constitution, the existence and dimensions of which were empiri-
cally undeniable. Whatever the framers of the Constitution were talking
about, they werent talking about telephone booths. In a famous pas-
sage, Justice Black said that for the Court to include telephone booth
conversations within the Fourth Amendment prohibition on unreason-
able searches and seizures would make the Court a continuously func-
tioning constitutional convention.12
I dont want to provoke yet another debate about originalism in con-
stitutional interpretation. I just note the structure of Blacks argument.
It is undoubtedly true that the framers of the Constitution never used
a telephone booth. It is also undoubtedly true that the framers knew
about the ancient practice of eavesdropping, and could have prohibited
governmental eavesdropping in the Fourth Amendment if they had
wanted to. Given these facts, Justice Black said, it was abusive of lan-
guage and reality and power for the Court to disagree with him.
Certainty and Doubt | 37

Most law students, in my experience, think Justice Black was wrong


in Katz but have a hard time saying why. I think that is because we
dont discuss Justice Blacks philosophical assumptions, and more im-
portant, dont discuss the majoritys rationalism. Theirs is a standard
rationalistic argument. There is a grid of reason, or reasons, underlying
the words in the text of the Fourth Amendment. What the framers of
the Constitution actually had in mind when they wrote the words is
important but is not the end of the matter. True they hadnt used tele-
phones; true they knew about eavesdropping. But the wiretap in the
telephone booth represents rather a special situation. On balance, it is
more akin to conscating papers in a private home than it is to over-
hearing a conversation while standing outside an open window. Rather
than rewriting the Constitution, according to a rationalist view, this in-
terpretation makes sense of it.
The same analysis applies to the recent death penalty cases discussed
earlier in this chapter, where Justice Scalia went ballistic over the major-
itys decisions that the death penalty could not be applied to mentally
retarded defendants and to defendants under the age of eighteen. In his
dissents, Scalia was the foundationalist (one might even say, the funda-
mentalist) parading as the institutionally constrained skeptic. Though
accused of being illegitimate foundationalists, the majorities in those
cases might be said actually to be rationalists with full awareness of the
lurking challenges of skepticism.
The standard skeptical response to judicial rationalism is to invoke
the slippery slope, to wit, if youre going to go around making sense
of things as you see them, where does that power end? How is that dif-
ferent from acting as a continuously functioning constitutional conven-
tion? And a standard answer to that is, well make as much sense of
things as we need in order for our experience to t together. No one
knows for all purposes where the line is, or where it will need to be
tomorrow.
An example is subatomic particles. When I was in high school, there
were supposedly three sorts of them: neutrons, protons, and electrons.
Last I looked, there were at least seventeen varieties of subatomic parti-
cles, not including the graviton (which accounts for gravitational
force) and the Higgs particle (which gives mass to all other particles),
both as yet unobserved.13 This system is considerably less tidy than
what I learned in tenth grade. Although I suspect that this listing is not
the end of the story, I believe that particle physicists are nonetheless
38 | Certainty and Doubt

helping to make sense, if only temporarily, of a gloriously complex


world.
Certainty and doubt are seldom polar opposites in human decision
making. Each of us has considerable practice in using different methods
of thought, and well never know for sure if one of them is right.
What we do know, particularly if we are lawyers, is that well be called
upon to participate to the best of our ability in contests of persuasion,
and that we will nd ourselves in the position of persuadability from
time to time.
A much-cited and genuinely delightful essay provides a hypothetical
scene for the philosophical drama. A philosopher named W. B. Gallie
gave the name essentially contested concepts to disputes that are by
denition not capable of resolution but that are sustained by perfectly
respectable arguments and evidence.14 I am generally suspicious of
sports metaphors, but Gallie illuminates his argument by reference to an
imaginary sport. Suppose there is a game where winning is not deter-
mined by a score but, rather, by quality of play.15 Each team has a loyal
group of supporters who persist in efforts to convert undecided fans
not through any vulgar wish to be the majority party, but because they
believe their favoured team is playing the game best.16
The continuous competition is not only for the championship but for
acceptance of the proper criteria for championship. In this game there is
no possibility for any purely mechanical method of winning, nor any
xed general principle for deciding, nor any ultimate universal agree-
ment about which team has played best.17 Gallies point is that the per-
manent uidity of the situation does not make it irrational, or mean
that particular team loyalists are acting from superstition, or according
to their own untethered subjectivities, or because of some biochemical
imbalance. It is conceivable that minds can be changed. Particular argu-
ments or pieces of evidence can be recognized as having logical force
for some disputants, if not always conclusive force for all disputants.
Perhaps most important, recognition of a concept as essentially con-
tested implies recognition of competing uses of it as of permanent
potential critical value to ones own use or interpretation of the concept
in question. . . .18
We might usefully think of the contest between certainty and doubt
in Gallies terms. Without any disrespect to the great philosophers, we
could of think of this contest as a centuries-old rivalry between two
debate teams. On the Foundationalist/Rationalist roster have been some
Certainty and Doubt | 39

immortal names: Plato, Aristotle, Descartes, Kant, Hegel, and Newton,


to name a few. The Skeptics have had their own heavy hitters: Sextus
Empiricus (for whom empiricism is named), Zeno, Hume, Berkeley, and
Nietzsche among them.
In this great rivalry, each of the All Stars has brought something to
the game: a style, perhaps genuine innovation, and sometimes towering
though always temporarydominance. They have different concep-
tions of and attitudes toward the criteria for excellence. Somenotably
Nietzsche, Wittgenstein, and Derrida have questioned whether the
game is worth playing. Critically, almost none of the greats can be said
to have played for the same team, at least not in the same way, through-
out their careers.
The only candidate for absolute team loyalty I can think of was the
pre-Socratic Greek named Pyrrho. Pyrrho is considered to be the ulti-
mate radical skeptic, that is, one who denies that we can ever be jus-
tied in our beliefs or values. Pyrrho doubted that he could ever
know anything. He even doubted his own skepticism. He could have
been completely mistaken about whether doubt was a meaningful
concept, or whether the doubt that seemed to go on in his head was
happening inside a real head, and so forth, per the pattern of the innite
regress. He was supposedly a purist. He never wrote down any of his
own thinking.19 Why bother? What quill? What parchment? What fu-
ture reader? What conceivable continuity in consciousness, if conscious-
ness exists, on which ones writing could have any coherent bearing?
What we know of Pyrrho comes from those who were his stu-
dents, or who otherwise hung around with him. The story goes that
they always made sure Pyrrho never set out on his own because, having
no reason to believe, for example, in what we call gravity (product of
those as yet unobserved gravitons), he might just walk off a cliff. It
turns out, however, that Pyrrho was not an absolute purist. There is
another story that on one occasion, Pyrrho chased his servant down the
streets of Athens with a frying pan because the servant had served a
poor meal to Pyrrhos guests.20 So Pyrrho not only had friends who
looked out for him but also had a frying pan, a servant, guests, and a
standard of hospitality that was vigorously enforced on at least one
occasion.
The most recent version of skepticism to capture the academic im-
agination is postmodernism, or poststructuralism. Most adherents to
this skeptical path do not label themselves, and it seems central to the
40 | Certainty and Doubt

denition of postmodernism that it is incapable of denition. With due


respect to the variousness of postmodernist schools, it is perhaps best to
focus on the postness of themthey claim to break free of the tra-
ditional boundaries of dispute. Many describe postmodernism as an
unwillingness to be ensnared by traditional questions of philosophy.
Among the traps to be avoided are metaphysics, binary divisions of tra-
ditional thought, grand theory, metanarratives, and claims to authority
of any sort. Postmodernism not only denies that philosophy can provide
a useful roadmap but also claims that no map is ever possible. The
real is a perpetually modied product of discourse, and any discus-
sion about what is real results in a foregone inconclusion.21
There are both mild and wild versions of postmodernism, as there
are more and less radical versions of any philosophical mode. The most
fundamentalist strands of postmodernism (oxymoronic as that designa-
tion may seem) cause consternation among progressive people because
they seem to preclude the possibilities of political commitment.
To some extent, however, it was always thus: skepticism discourages
activism. Before the postmodernist versions of skepticism, we had (and
still have) liberalism, which is depressing enough as a skeptical political
stance. The philosophical tradition called liberalism is all about radical
individualism, which in turn yields moral relativism, which in turn
yields the social paralysis when we (collectively) believe that we are
each a person in our own right and entitled, damn it, to our own
opinion. What I regard as progressive causes therefore run up against
natural limits in liberal thought. Afrmative action causes a big stink
because it seems to deprive some people (usually white people and/or
male people) of what they regard as the just rewards of their individual
industry. Antipornography and anti-racial-hate speech campaigns have
come under re because in a morally relativist regime, they are labeled
as thought policing.22
With liberalism, however, at least we could band together under the
banner of individual dignity, and demand equal treatment for individu-
als (though often disagreeing on what such treatment might look like).
Postmodernism, however, denies the coherence of the concept of the
self.23 Thus, postmodernism can lead to doing nothing24 even faster
than traditional liberalism: if a text has an innite number of readings,
then not only is one mans trash another mans treasure but I am delud-
ing myself when I entertain any belief, a belief that I treasure something
or that there is a thing to treasure or that there is an I to maintain the
Certainty and Doubt | 41

sentiment. Even the provisionally agreed upon landmark of individual


dignity cannot be maintained with a philosophical straight face.

Charting Middle Roads


It is important to understand the full power of all kinds of skeptical
positions. Indeed, to be able to maintain full skeptical powers while still
participating in interpretive debate might be said to be the denition of
critical thought. Most people seem consistently to want to know rea-
sons for things, want to know whether there is a point to existence, and
want to know how to go about making decisions about how to act.
That is at the bottom of Aristotles denition of man as the rational ani-
mal. There may not be nal answers, but our species keeps asking the
questions.
The name of the jurisprudential game in the twentieth century was to
chart some middle ground between rationalism and radical skepticism.
The former was called natural law, a matter whereby the answer to
any legal question could be achieved by access to Right Reason. Natural
law has its roots in both ancient philosophy and Christian theology.
Because it relied on some sort of transcendence or mysticism, natural
law became unacceptable in an antifoundationalist age. On the other
end of the spectrum is radical skepticism. Again, particularly in this
antifoundationalist age, it is an easy philosophical position to defend
but is unbecoming to lawyers and judges. By denition, we are forced to
take the position that there is some authority somewhere that can be
relied upon to provide guidance in a legal dispute. There will be gaps
in authority or it will be ambiguous. It will not have any transcendent
imprimatur. But there have to be some norms somewhere to which
those of us who recognize an obligation to law will regularly point.
I earlier referred to the professional default position, the notion
that experienced lawyers know the sources and limits of authority, and
know how legal standards apply. But that is itself a kind of mysticism.
Depending simply on professionalism might be justiable if the legal
system reliably worked in most contexts, or could be believed by the
public reliably to do what feels like justice. Some of us are bigger sup-
porters of the legal system than others, but I dont know of anyone who
feels that it functions efcaciously and without need of perpetual justi-
cation. Whether or not law actually does any good, because it is an
42 | Certainty and Doubt

instrument of socially sanctioned violence, it strikes me as an enterprise


that demands a rather precise (though of course uidly precise) relation-
ship to skepticism.25
A skeptical modern jurisprudence is that known as legal positiv-
ism, noted in chapter 1, and advocated in the most nuanced way by
Professor H. L. A. Hart.26 In positivism, the law is that which is posi-
tively enacted, there on the page in black and white, duly enacted by
duly constituted authorities. Legal positivism has its intellectual roots in
British utilitarianism. The great utilitarian Jeremy Bentham had warned
that foundationalist legal theories such as natural law presented the
twin evils of anarchy and conformity. That is, as explained by Profes-
sor Hart, if we accept the proposition that an unjust law is not a law,
the danger on one hand is that the authority of law will be decimated
by each individuals conception of justice. On the other hand is the dan-
ger that existing law (that which weve accepted as law because we
think it is just) will supplant morality as the nal test of exercises of
political power, and that vests too much authority in government.27
The way to avoid the twin evils is to approach law with clarity and
modesty. It is true that decision making is not merely a matter of deduc-
tion. Still, according to Hart, legal rules have some settled core mean-
ings about which there is little disagreement. If there is an ordinance
that prohibits vehicles in the park, we know the city council didnt want
automobiles in there. Other than some obvious core meanings, rules
have penumbras of meaning that provide guidance, if not absolute
certainty, about what the law requires in a given case. Do roller skates
constitute a vehicle within the meaning of the ordinance? We dont
know. We need more context. Fortunately, to supply meaning, to navi-
gate the open texture of language and rules built from it, is what
language users do. We are really good at it. We shouldnt make things
more mysterious than they are.
Moreover, when we mystify law unnecessarily, according to Hart,
we give it too much power. We dont need to encourage highfalutin
theories about the moral content of law. We need to encourage practical
expertise in moral judgment. There is no need to ght about whether an
unjust law is a law. Better to say, simply, The law is the law, and then
move to a different discussion about whether a particular law is too evil
to be obeyed. To promote clarity in such contexts is the moral benet of
skepticism with respect to the authority of law.
The fact of contemporary life, however, is that legal discussions al-
Certainty and Doubt | 43

most never get to the point of civil disobedience, or even much orga-
nized resistance on the progressive side. Particularly in the context of
U.S. judicial review, weve come to expect that the law will entertain
more than strictly legal, merely positivist arguments. In the U.S. repub-
lic, the courts are major contributors to discourse about political values
and aspirations. Thus, although Harts positivism has profoundly inu-
enced judges and lawyers, it has not completely satised their normative
itch. It is perhaps particularly unsatisfying in U.S. lawyers experience to
provide so little moral and political content in a jurisprudential account,
given that even our positivistic rulesparticularly the broad guarantees
of the federal Constitutionrequire normative interpretation.
In the United States, mainstream jurisprudence has responded with
what can be called institutional coherence theories, that is, approaches
that treat the entirety of legal rules and relationships as the product of
an implicit rational plan. In this tradition, which has had contributors
from several generations, the answer to a legal question is generated by
asking what ruling best ts with the institutions and existing practices
within the entire system.
Of course, merely to require that a judges decision cohere with some
underlying rational plan, particularly when the plan is unarticulated or
difcult to articulate, gives that judge considerably greater leeway than
to require that he stick closely to the settled core meanings of rules. As
Duncan Kennedy says, every nonlegal argument that enters into deci-
sion making is viewed as a potential Trojan house within laws fortress
of legitimacy.28 Some call it policy argument. Whatever we call it,
theres a ne line between it and political ideology. Once inside the
gates, there is a fear that ideology will sack the city.
The task for the institutional theorists is therefore to come up with
some limiting principles for its liberated judiciary. Process-based and
institutional-competence theories are part of this tradition, but surely
the best known institutional theorist is Professor Ronald Dworkin.
Dworkin has asserted there are right answers to legal questions. The
judge arrives at them by reference to values that inhere in community
life. Dworkin famously personied the community in a ctional judge
named Hercules.29 Judge Hercules deduces answers from rules when
he can, but often that is not enough. Where the road is uncharted, Her-
cules wants to move toward justice. His personal ideological vision of
justice is disciplined by the requirement that his ruling be consistent
with the communitys traditions and earlier decisions, a matter made
44 | Certainty and Doubt

considerably easier in a legal regime that establishes rights as trumps


on other interests. Hercules presides over a rights-based rather than pol-
icy-based regime. What critics would call ideology in other judges
becomes political theory when wielded by Hercules.
The overall Dworkinian project is to make liberal judicial decisions
seem legitimate and conservative decisions seem illegitimate, that is, to
construct a principled-looking adjudicative ratchet that turns the way
liberals want it to turn. That is pretty much, though, what the other
side is doing as well, in all that chatter about objectivity and subjectivity
described earlier in this chapter. I appreciate that Professor Dworkin
and his supporters keep at their task like Energizer Bunnies. Of course,
neither side can ever decisively win the contest. That part is ne; I ap-
preciate a perpetual interpretive competition. Im just not sure it is turf
our side is more objectively principled than your sidethat is par-
ticularly worth defending.

Revisiting American Pragmatism


I think it is time for courts and lawyers explicitly to abandon the debate
between objective and subjective points of view. The obvious option is
philosophical pragmatism. As noted in the introduction, perhaps the
greatest compliment one lawyer can pay another is to call him prag-
matic. A useful movement in legal philosophy has been to enlarge
what we might mean by these legal virtues, to embrace philosophical
pragmatism within them.30
Pragmatism is a school of thought founded by three great American
philosophers: Charles Sanders Peirce in the nineteenth century, and
William James and John Dewey in the twentieth. To simplify matters,
pragmatism is among the philosophical schools urging that it is time
to get over philosophy. The certainty versus doubt conundrum is a
matter of stuckness, of philosophical bad habits, specically the bad
habit of dualistic thinking. Traditional philosophical thinking revolved
around a set of presumed opposites: object/subject, mind/body, mater-
ial/spiritual, public/private, and theory/practice, just to name a few. All
of that dualistic thinking followed from the assumption that there is a
reality out there, if only we could discover a way to know it. This is
called the correspondence theory of truth. An item counts as knowl-
edge only if it corresponds to reality. Skepticism, seemingly irremediable
Certainty and Doubt | 45

as of the twentieth century, was the inevitable result of the correspon-


dence theory. There is simply no way reliably and permanently to distin-
guish what is reality and what is mere perception of reality, thus no
way dispositively to test whether our perceptions correspond to reality.
John Dewey urged that we replace those habits of dualistic thinking
with efforts to understand how organisms survive in their environ-
ments. We cant discover any ultimate truths; we cant be the end of phi-
losophy or any other sort of inquiry. Culture is a process of creating
new habits and institutions in order to enhance human experience.
Other philosophers, such as Willard V. O. Quine, denied that items of
knowledge have to be copies of whatever are realities in the world,
what I will later refer to as the furniture of the universe. Rather, what
people count as knowledge depends on the difference a given belief
would make in an ever-changing world if it were counted as true.
Truths are instruments we invent to help us cope with circumstances,
beliefs that change as necessary to account for experience. What matters
is the web of communication and learning that helps us to arrive at
hypotheses about reality that work independently and with one another.
Every person inherits truths from learning to be a language user. Every
language user contributes to the evolution of truth, as she goes about
squaring experience with that inheritance, otherwise known as com-
mon sense.
The optimistic mantle of American pragmatism is now borne by Pro-
fessor Richard Rorty, a man who writes seldom about law but around
whom a great deal of contemporary legal scholarship revolves. We cant
get over the philosophical dilemmas. The most inuential of skeptical
philosophers, David Hume, had said in the eighteenth century that
skepticism isnt a practical option.31 Echoing Hume, Rorty says that the
skeptical philosophy called postmodernism is philosophically right but
politically silly.32 The rationalist alternativethat long battle waged by
Ronald Dworkin and companyis not worth the energy it takes to
keep it aoat. Rorty wants us not only to get over philosophy but to
throw off the epithets that are particularly debilitating to legal theorists:
relativist, subjectivist, result-oriented. All theory that is coherent is al-
ready rooted in practice. Theorizing is of use only in service of the pro-
jects of diminishing human suffering and increasing human equality,
equality being the platform for every person to have a chance at happi-
ness. It is a goal worth dying for, but it does not require backup from
supernatural forces.33
46 | Certainty and Doubt

As described in the introduction, my closest afliation is with femi-


nism, but it is a version of feminism that has much in common with
contemporary pragmatist thought. Both reject the subject/object split
and the metaphysical divide between certainty and doubt. Both are
antiessentialist, antireductionist, and explicitly contextual, proceeding
from the facts of social life and in resistance to the hierarchical organi-
zation of the world. The mere title of Rortys wonderful book, Contin-
gency, Irony, and Solidarity,34 encapsulates a lot of feminist philosophy
and commitment.
In chapter 5, I will have much more to say about what feminist
jurisprudence is and how it works to inform legal judgment. We shall
see that legal feminism does not discriminate among ideas because of
their origin. With W. B. Gallie, feminists of my stripe regard competing
arguments as being of permanent potential critical value to ones own
use or interpretation in a given contest.35 I think that feminism is
enriched by several philosophical traditions. These include pragmatism,
Wittgensteinian language philosophy, and an emerging discipline some-
what scarily known as virtue ethics,36 a mode of discourse that gives
prominence to human striving and the collective desire that all should
be provided every resource in order to ourish.
Before a more sustained discussion of feminism, though, I will devote
considerable inquiry to two areas that falsely promise refuge from the
strenuous work of implementing feminist, pragmatic, and ethical analy-
ses in the law. Those tempting dead-end paths are, rst, the belief in the
reliability of determinations of facts, and second, an overreliance on
traditional liberal thought.
3

Intractable Questions

Knowledge . . . is not itself power, although it is the magnetic eld


of power. Ignorance and opacity collude or compete with knowl-
edge in mobilizing the ows of energy, desire, goods, meanings,
persons.
Eve Kosofsky Sedgwick, Epistemology of the Closet

In the prior chapter, I described the tension between cer-


tainty and doubt with reference to familiar legal problems. Whether
lawyers like it or not, the U.S. Constitution doesnt explain what it
means in every controversy by searches and seizures or cruel and
unusual punishment. The rst set of words is inherently ambiguous:
one cannot assert with certainty or nality either what behaviors the
Framers of the Constitution intended to be subsumed within the terms
searches and/or seizures or what behaviors should be subsumed
within those terms. The second set of wordsparticularly the word
cruelis inherently ethical, what is often called a value judgment.
I meant to convey in that chapter that it is simplistic and irresponsible
just to retreat into the supposed superiority of objective over sub-
jective assessments of such words, and even that the divide between
objective and subjective is a smoke screen.
The underlying problem is that, even if there were some objective,
xed, external world beyond what we perceive, there is no way for us
to verify when we truly know it. That dilemma is among the four
that Immanuel Kant described as philosophical antimonies: questions
that keep coming up but for which there can be no ultimate resolution.
These are the intractable questions for which this chapter is named,
and there is no getting around them in law.
Another of the metaphysical antimonies is the question of whether
we have free will or have all our thoughts and actions (including our
perception that were acting freely) determined by some larger force. On

47
48 | Intractable Questions

this one, law has decided to pick the side of free will generally but to
make exceptions in recognition that many circumstances compromise
human choice. Once in a while you get an extraordinary judicial dis-
course on the broad philosophical outlines of this problem. Look, for
example, at United States v. Moore,1 where some of the most distin-
guished judges ever to sit on the Court of Appeals for the District of
Columbia debated whether a drug addict could form the state of mind
necessary to be convicted for possessing narcotics.
Of course that court didnt nally decide the issue, and no court ever
will. The free will problem will present itself forever, in ever-changing
contexts, for example, as we learn more about neuroscience2 and the
inuence of genetics3 on behavior. In the meantime, judges cut certain
deals for certain subclasses in certain contexts, an ongoing process that
is hotly contested, but otherwise the legal system ambles along as if free
will were the most obvious thing in the world.
Regarding another of Kants antimoniesthe existence of Godthe
law just proceeds in perpetual chaos. The legal question is never overtly
whether God exists. Rather, government in the United States prefers
religion over nonreligion (which it isnt supposed to do) in many con-
texts, for example, child custody determinations, where a churchgoing
parent usually gets a big boost.4 Doesnt that, at some level, amount to
a governmental pronouncement that God exists and that he is good?
Of course, the perpetual font of intractability is the First Amend-
ment. Two cases about public display of the Ten Commandments, de-
cided on the same day in July 2005, exemplify the conceptual whirl.
In one case, a ve-person majority of the Supreme Court said that the
Establishment Clause of the First Amendment to the U.S. Constitution
precluded two Kentucky counties from displaying the Ten Command-
ments on courthouse walls.5 In the other case, ve Justices said that the
Establishment Clause did not preclude Texas from maintaining a granite
monument inscribed with the Ten Commandments on the grounds of
the state capitol.6
Each case generated seven separate opinions as well as close votes.
In most respects, however, the cases were unremarkablejust seventy
pages of further wrangling in decades of wrangling about whether to
maintain any or all of existing Establishment Clause doctrine. There
was one remarkable aspect of the cases, however, illustrating my claim
that even garden-variety First Amendment religion cases cannot avoid
intractable questions of theology.
Intractable Questions | 49

In 1952, the Supreme Court majority wrote a much-quoted sentence:


We are a religious people whose institutions presuppose a Supreme
Being.7 Rather than being a blank check for government endorsement
of religion, this (historical?) (theological?) premise has allowed that
some governmental references to religion, and some governmental sub-
sidization of religious expression, do not violate the Constitution. These
include a number of what Justice Breyer might call borderline cases,8
cases that often feel like bickering over matters of barely discernible
degree. I had long thought, however, that the basic principles of Estab-
lishment Clause jurisprudence were solid: the government may not dis-
criminate among religions, and the government may not favor religion
over nonreligion.
In the recent McCreary County case, however, three members of the
Supreme Court made an astonishing claim. The Establishment Clause,
according to Justices Scalia, Rehnquist, and Thomas, allows govern-
ment to discriminate in favor of monotheistic religions. This gang of
three was careful to say they endorsed such bias only in a limited con-
text. Government still cannot favor individuals exercise of monotheistic
religious faiths over polytheistic ones; nor can government favor the
exercise of some religious faith over no religion; nor can government
discriminate in expenditures in favor of monotheisms over polytheisms,
or in favor of religious over nonreligious recipients of public funds.
When it comes to the governments own expression thoughby God
governmental actors can spout all the Christian, Judaic, and/or Islamic
beliefs they want, including putting up the Ten Commandments on the
taxpayers walls in McCreary and Pulaski counties, Kentucky.
From this, law review commentators will glean much for their mills. I
will not jump into many amazing aspects of the debate (for example,
the dispute between Justices Scalia and Stevens regarding how many
U.S. believers are monotheistic).9 I would just note that this discussion
proceeds on both sides from a startling level of theological certainty
about what constitutes monotheistic religion, polytheistic religion, non-
theistic religion, or the absence of religion altogether. Are we sure that
we would classify the Founding Fathersmany of whom were Deists
as monotheists?10 And what about Hinduism? Isnt it profoundly about
the illusoriness of the distinction between the many and the one? Might
I argue for preferential treatment of Hindus on the grounds that it can
be considered monotheism made pure? And though Islam is an ostensi-
bly monotheistic religion, the foreign policy of the United States seems
50 | Intractable Questions

pretty clear that there are theologically correct Muslims and deeply mis-
taken Muslims.11 Im not sure who decides that and on what grounds,
or whether Justice Scalia is prepared to distinguish among monotheists.
Even if the Supreme Court could successfully avoid the particular ques-
tions I have raised, can there really be any end to this business of judi-
cially examining other peoples faiths?12
The spiritual antinomy will arise sharply again should Congress
decide to reinstitute the military draft because we would be immersed
again in the problem of conscientious objection to military service. As
of the time that the draft was discontinued in 1973, the rule of consci-
entious exemption had been expanded beyond those who held identi-
ably religious objections to war (such as Quakers, who are card-
carrying members of a theologically pacist church group). Exemption
was available also to those who held a sincere and meaningful belief
which occupies in the life of its possessor a place parallel to that lled
by the God of those admittedly qualifying for the exemption.13 That
standard was notoriously difcult to administer, provoking many to
urge that the United States take a broader approach, but that has its
problems, too. Europe has done so, providing legal protections beyond
military exemption for those holding any religion, religious belief, or
similar philosophical belief that ts certain criteria such as having
collective worship. Some in the United Kingdom were worried that
the 390,000 Britons who listed Jedi knight as their religion in the
2001 census would claim a religious holiday upon release of the new
Star Wars movie.14 If Revenge of the Sith brought Europe to a screech-
ing halt, I havent heard about it yet. I can imagine that, should the
United States reinstitute the draft and liberalize the exemption rules, the
proliferation of Darth Vader outts at induction centers would decrease
the solemnity of future military deployments.
For any question arising with the eld of the antimonies, the honest
answer is nowhere to run to, baby, nowhere to hide. Well have to do
the best we can with what we have, assuming we can agree toward
what end this activity is directed but keeping in mind that any answer
we achieve will be provisional and open to revision.
We nd little honesty within legal discourse, however, about what we
do and dont know. When we look closely, we see instead that the post-
modernist philosophers (notably here, Foucault) were right in identify-
ing the economy of knowledge and power as the stuff of which the
world is made. When it suits the status quo, knowledge is impossible,
Intractable Questions | 51

such as when we need a decision about the cruelty of the death penalty
for minors and the mentally retarded. And when it suits the status quo,
certainty is scientically achievable, even when the scheme of proof is
manifestly made up in a manner that consistently benets the wealthy
friends of those who are assigned the task of making up the criteria for
truth. As noted in the epigraph to this chapter, power results from collu-
sion among knowledge, ignorance, and opacity.15
For the remainder of this chapter, instead of talking about evalua-
tive questions, such as what constitutes cruelty or religious belief,
I want to focus on facts. Specically, I will explore another of those
Kantian puzzles in some depth: the judicial evaluation of causation.
This issue is like a metaphysical bad penny: for all the innumerable
efforts to revise, reconceptualize, and streamline rules for determining
causation, it keeps re-presenting itself in ever more complex forms. This
seems particularly so in mass tort and/or toxic tort cases. The tox-
icity left by human enterprise is only recently being appreciated, and
research cannot keep up with the synergistic effects of the toxic soup in
which we live.16 From thalidomide to asbestos to Vioxx to the as-yet-
unanalyzed concoctions that belched out of the World Trade Center on
September 11, 2001,17 how can the law meet the needs of persons in-
jured by exposures that are difcult to isolate?
I believe that at least in federal courts, judges are deploying a baro-
quely congured fake objectivity in a way that actually discourages cor-
porate actors from promoting public safety. That is the political result.
My theoretical point is that the federal courts in mass tort cases have
confused the distinction between epistemology and ontology when ad-
dressing questions of causation in mass exposure situations.
These are fancy words, but I dont think one can appreciate the prob-
lem of toxic causation as a subset of the hegemony of facts without
understanding them. Epistemology means the study of knowledge, of
the criteria by which we measure the usefulness of any assertion of fact.
Ontology, on the other hand, is the study of being, of what is actually
out there. Ontology is the question of whether there is furniture in
the universe, and what it might look like.18 Without maintaining the
distinction between epistemology and ontology, one is apt to confuse a
method for calibrating the practical reliability of a claim of fact with the
eternal word of God.
Specically, the federal courts19 have allowed a Rule of Evidence (a
rule about what will count toward knowing, an epistemological rule)
52 | Intractable Questions

to decide profound questions of metaphysics and social policy. The crit-


ical event was the U.S. Supreme Courts 1993 ruling in Daubert v. Mer-
rell Dow Pharmaceuticals, Inc. The Court interpreted the requirements
of Federal Rule of Evidence 702, which allows for testimony of scien-
tic, technical, or other specialized knowledge that will assist the trier
of fact. In order to be admissible, the Daubert Court stated, scientic
evidence had to be grounded in the methods and procedures of sci-
ence, a condition [that] goes primarily to relevance.20 Whether or
not it was the Courts intention, lower federal courts in toxic tort cases
have used their Daubert gatekeeping power to exclude plaintiffs sci-
entic evidence as irrelevant, which has led either to summary judgment
for defendants or to the overturning of jury verdicts for plaintiffs where
such evidence had been admitted.21
What does a claim of causal connection really amount to? Is causa-
tion really a matter of fact? If empiricism is the guide, then all causal
claims are indeterminate, according to a three-part analysis devised 250
years ago by British philosopher David Hume.22 First is the relationship
in space and time between alleged cause and alleged effect. We could
refer to this aspect of causation as closeness. Second is what Hume
called constant conjunction, what we can refer to as frequency
how often we observe the alleged effect after the alleged cause.
But the third aspect of an allegation of a causal relationship is not
observable. That is the necessary connection between alleged cause
and alleged effect. It is only this third aspect that turns mere correlation
into causation. Because of the impossibility of observing the necessary
connection, what we call causation is really just a habit of inference,
a habit humans will exercise depending on the persuasiveness of the evi-
dence of closeness and/or frequency. It is a habit we exercise thousands
of times each day, in easy as well as hard cases. It is still just a habit, a
customary way of explaining our experience. To put it in the grand lan-
guage earlier used, Humes point was that judgments of causation are
always matters of epistemology (method), rather than ontology (being).
Causal claims that seem strongest are those that have high degrees of
both closeness and frequency. The habit of causal inference becomes less
comfortable as situations yield fewer indicia of closeness or frequency,
or both. We can visualize this decreasing comfort level by addressing
three easy thought problems: depending upon gravity, hitting billiard
balls, and falling off a bridge.
I feel condent about gravity, the force (perhaps soon observable as
Intractable Questions | 53

gravitrons) by which masses are pulled to other masses at a calcula-


ble rate. Though scientists are now reporting that gravity may be differ-
ential,23 gravity is as reliable as things get. For example, when I let go of
my pencil and it hits the oor, I have a good argument that the letting
go caused the hitting. My ngers were exactly next to the pencil, and
the letting go was temporally smashed up right against the falling and
hitting, and, at least so far, every time I let go of my pencil while hold-
ing it above the oor, it falls. There seems to be a perfect Humean cor-
relation.
I have only somewhat less condence when it comes to billiard balls.
Adding isolatable lateral forces to the force of gravity is an easy physics
problem. Sometimes Im a good pool player. Other times every angle
seems to conspire against me. When I miss I tend not to attribute it to a
crooked cue or a warped table, but to my lack of concentration or lack
of skill. And I am not led to doubt that, if the stroke is properly exe-
cuted, the effect will be the sinking of the billiard balls. There will be
perfect contiguity in space and time, and there will be absolute con-
stancy in alleged cause and alleged effect.
Beyond that, things are more complicated, particularly as we become
cognizant of necessary negative inferences in an analysis. Consider a
case from Louisiana. A man, alone and probably drunk, fell off a bridge
while walking home at night and was killed.24 There were no witnesses.
The bridge rails were four inches shorter than as prescribed in regula-
tory documents. There are dual Humean difculties in this example.
We have a fairly condent notion of the spatial closeness between al-
leged cause and alleged effect (the bridge and the body) but cannot be
condent about the temporal closeness. The man may have bounced off
the perfectly sufcient rail many times before he decided to backtrack,
climb up, and jump over. He could have been thrown off by someone
else. Many things could have happened.
The more important Humean problem, though, is lack of frequency.
It is manifestly untrue that every time an intoxicated person walks over
that bridge at night, he falls to his death. Indeed, in the Louisiana case,
there were no prior instances of similar casualties at the insufcient
bridge. The constant conjunction aspect of Humes test utterly fails
(not to mention the fact that the dead man may have fallen even if the
rails had been four inches higher). Nonetheless, the Louisiana Supreme
Court allowed the trier of fact to make the causal judgment in favor of
the plaintiff.
54 | Intractable Questions

Heres the point: determinations of causation in toxic tort cases are


not necessarily more difcult than causation determinations in garden
variety torts. We let triers of fact make those determinations all the
time. Some causal cases are just more unfamiliar than others. But in
toxic tort cases, the federal courts typically take fact-nding authority
away from the jury by privileging frequency over all other possible indi-
cia of causation. The real explanation of why toxic torts get treated dif-
ferently, I suspect, is that the defendant industrialists dont like losing.
It is worth studying the elaborate epistemological choreography at
work here. The rigid burden on plaintiffs in toxic torts cases has two
parts: general causation, that the toxin in question could cause a
harm like that suffered by plaintiff, and specic causation, that the
toxin in question did cause this plaintiffs harm.25 The rst question is
easy with respect to toxins that produce signature diseases. That is,
although not everyone exposed to the toxin will develop the disease,
every time the disease appears, the patient has been exposed to that
toxin. The disease is not known to be associated with anything else.
The paradigm signature disease are adenocarcinoma, the vaginal cancer
observed only in daughters of pregnant women who took DES to pre-
vent miscarriage, and mesothelomia, the respiratory cancer observed
only in persons who have been exposed to asbestos.26 In these circum-
stances, the frequency aspect of the Humean model is satised, for
there is no incidence of disease in the background population to
which the frequency of disease among plaintiffs can be compared. In
such cases, plaintiffs almost always satisfy the requirements for general
causation. But those are not the typical cases. In the vast majority of
toxic injuries, the disease suffered by the exposed plaintiff is a disease
that occurs naturally in the population, even among those who have
not been exposed to the toxin at issue. For example, birth defects can
occur even among newborns of mothers who did not take the anti-
nausea medication Bendectin during the twenty-seven years that it was
on the market. The questions are whether Bendectin sufciently in-
creases the probability that an infant will be born with a birth defect
(general causation), and whether Bendectin was the cause of the defect
suffered by the child of this particular Bendectin-ingesting mother (spe-
cic causation).
And here is where weve let industry, the defense bar, and their judi-
cial friends blind us with science. To prove general causation, the
plaintiff is expected to put on epidemiological evidence. Epidemiology is
Intractable Questions | 55

the science of establishing an association between a toxic agent and a


disease by comparing the incidence of the disease in the exposed popu-
lation against the incidence of the same disease in the background
population. In general, a toxic tort plaintiff needs to introduce at least
one study of how many people got a disease after a particular exposure
to a toxin compared to how many people would have had that disease
anyway. Moreover, and most articially, the epidemiology presented has
to reach a very specic result: the study must show a relative risk of
at least 2, often called the doubling of the risk standard.
The relative risk is an estimate, expressed as a ratio, of the incidence
of disease in the exposed group compared to the incidence in the non-
exposed group. Put simply, if ten newborns in the Bendectin-exposed
group had a specic sort of birth defect, and ten newborns in the unex-
posed group had that same defect, the relative risk would be reported
as 1. That would suggest no difference in the rate of birth defects
between the groups, and would therefore suggest no correlation be-
tween Bendectin exposure and that sort of birth defect. If, however,
thirty infants in the exposed group suffered the defect, and only ten in
the unexposed group suffered it, the relative risk would be reported as
3, suggesting that an exposed infant was three times more likely than
an unexposed infant to suffer that defect.27
That sounds ne, but one needs to appreciate how seldom epidemiol-
ogists reach a relative risk of 2 or greater. That is so even among the
populations of Hiroshima and Nagasaki exposed to huge amounts of
ionizing radiation by U.S. atomic bombs in 1945. Almost sixty years
later, among the dozens of diseases commonly suffered by those resi-
dents and their descendants, there has been a demonstrated relative risk
of greater than 2 only for breast cancer and stomach cancer.28
Any relative risk greater than 1 actually indicates that exposure to
a toxin increases the risk of getting a disease, and we let juries consider
evidence of mere increase of risk in all manner of cases.29 An epi-
demiological study with a relative risk result between 1 and 2 may
not itself show a strong association between a toxin and a disease, but it
certainly does not disprove causation. Though courts simplistically liken
the doubling of the risk requirement to the preponderance of the evi-
dence burden in civil cases,30 it is actually closer to proof beyond a
reasonable doubt.31 As some scientic critics of courts misapplication
of epidemiology have put it, scientists would consider epidemiological
studies regardless of the relative risk calculation. They might ignore
56 | Intractable Questions

the results because of poor study design, or because confounders might


explain the ndings when the rate ratio is less than two, but they would
not nd the study to be irrelevant. 32
So, for example, a study introduced in the silicone breast implant lit-
igation showed a relative risk for autoimmune disease among women
with implants of 1.24. Even Dr. Marcia Angellwho has been vocif-
erously critical of the implant litigationhad to admit the relevance
of the study. It could mean, she said, that for two out of twelve sick
women with implants, the implants were the sole cause of their disease
and in the other 10 they played no role. Or it could mean that implants
played a major role in 3 or 4 women and a very small one in the others.
Or it could mean that implants contributed a varying amount to the dis-
ease in all 12.33 With all due respect, how can courts denigrate such
evidence as irrelevant? Angells modest interpretations are suggestive at
the least of the need for further study, rather than reasons for breast
implant plaintiffs to be forever shut out or for the FDA to reconsider
allowing silicone implants to be used.
Nonetheless, epidemiology with a specic result has become the sine
qua non in mass exposure cases. If epidemiological evidence showing a
relative risk greater than 2 is unavailable or otherwise inadmissible,
the plaintiffs case is over.34 Other evidence that might show a general
association between a toxin and a disease, such as animal studies or
toxicological testimony, is ordinarily not admissible at that point. And
the plaintiff will not get to specic causation at all. No jury will ever
get to hear about the relationship in space and time between the plain-
tiff and the toxin; will not hear about the dose of the toxin this plaintiff
received; will not hear about consistencies between the latency period of
the disease and plaintiffs disease; will not hear whether plaintiff can
eliminate other sources of the disease; and will never hear anything
from the plaintiffs own physicians, no matter how qualied they are.
Judges distort the nature of causality, stack the deck for risk-impos-
ing defendants, and overreach their powers when they allow epidemi-
ology to become the evidentiary sine qua non in mass exposure cases.
Epidemiology could speak only to Humes second criterion for an al-
legation of causation: the frequency of appearance of both an alleged
cause and an alleged effect. Epidemiology begs the question on Humes
rst criterion, the contiguity in space and time between a specic al-
leged cause (the conduct of a defendant) and a specic alleged effect
(the harms suffered by a plaintiff) because every epidemiological study
Intractable Questions | 57

constructs from the beginning what spatial and temporal boundaries


will be considered. To throw out everything on the grounds of alleged
epidemiological insufciency is rather like saying the jury cant know
the drunken man was crossing the bridge, because fewer than half the
people who crossed it before hadnt fallen off.
Epidemiology has a special place in the pursuit of scientic progress.
It allows for tracking and predicting patterns of diseases, and is perhaps
the single most important indicator for how medical research should be
directed. However, epidemiology is a conservative science that errs dra-
matically in the direction of false negatives.35 Epidemiology is also an
extraordinarily expensive, time-consuming, and complex enterprise, in-
cluding many controversial variables. Those variables include dening
the disease or diseases of interest; determining the demographic con-
tours of the relative populations; ascertaining the exposure levels of the
exposed population; controlling for confounders (other sources of the
disease); and devising measurements of the scientic robustness (includ-
ing statistical signicance) of the study.36 Many plaintiffs will face a
statute of limitations years before a meaningful epidemiological study
of an alleged toxin could even be designed. Yet they are unable to get
courts to see the difference between no correlation and not yet any
epidemiological evidence of correlation between alleged cause and al-
leged effect. Even if there is time, no plaintiff to date has been in a posi-
tionnancial or otherwiseto conduct his own studies. Studies do
not happen in a vacuum, and in litigation or potential litigation con-
texts are often conducted by the defending interested parties.
Epidemiology is simply not a neutral tool of legal analysis. It is there-
fore critical for courts not to conate methodologies with conclusions
not to conate epistemology with ontologya conation particularly
audacious because judges are making claims about the natural world
that scientists would not make.
Some scientists and lawyers are attempting to engage courts in more
honest conversation about the nature of causal judgments. Much philo-
sophical and legal commentary revolves around the problems of what
information, in what different contexts, should be deemed necessary
or sufcient or necessary and sufcient in order to justify a judg-
ment of causation.37 Perhaps most revealing about the real stakes and
processes at issue are discussions of a hugely inuential article, in which
Sir Austin Bradford Hill identied nine points of view that can be
brought to bear on a causal hypothesis in the toxic exposure context.38
58 | Intractable Questions

It is worth taking a brief look at these because they tend to expand in


the toxic exposure context upon what Hume identied as the observ-
able aspects of any causal assertion, as well as upon the pragmatic na-
ture of human knowledge and the feminist method I espouse.
First in Bradford Hills list is temporality. The event or exposure
hypothesized to be causal must precede the effect in time. Second is ex-
perimentation; the hypothesis must be testable by scientically designed
methods. Third is consistency. That means that the results of experi-
ments must be replicable if at all possible. Note that epidemiological
results can never be exactly replicated because epidemiological cohorts
are never strictly controlled; no two test populations in successive
studies can ever be exactly the same.
Analogy informs Bradford Hills fourth point of view. The scientist
should consider the biological activity of disease agents similar to what
is known about the toxin at issue. Here again, the point is not dis-
positive because biological pathways are only partially understoodif
understood at allfor many toxic agents.39 Fifth in the list is considera-
tion of the biological gradient. The concern here is the dose-response
ratio: what degrees of exposure would we expect to see with what
effects? This is a complex curve, difcult to establish, and never estab-
lished for many powerful toxins, for example, the antimiscarriage drug
DES. Sixth to be considered is the strength of association in available
studies. Among criteria are statistical signicance and evaluation of
various confounders, those other inuences acting on populations
and individuals that could be alternative explanations for disease. Sev-
enth is biological plausibility, that is, the explicability of the causal hy-
pothesis in terms of known mechanisms of disease. Eighth is coherence,
an assessment of how the hypothesis ts with, or the degree to which
the hypothesis does not displace, all that is known about this toxin and
this disease. Ninth is specicity, meaning the degree to which this hypo-
thetical cause and effect can be isolated. Of course, this last point of
view underscores the largest difculty: in other than signature disease
situations, no one cause is ever isolatable.40
Bradford Hills points of view overlap, are suggestive with respect to
one another, and are necessarily cumulative. Evaluation of a causal
hypothesis depends on consideration of all the points of view. I cannot
overemphasize the conclusion of Sir Bradford Hills analysis: None of
my nine points of view can bring indisputable evidence for or against
Intractable Questions | 59

the cause-and-effect hypothesis and none can be required as a sine qua


non.41 I would suggest that Bradford Hills conclusion in the context
of toxic causation resonates with the great recent contributions of phi-
losophy from Wittgenstein through the American pragmatists to the
postmodernists: nothing can be postulated or required as the sine qua
non of any critical issue of knowledge or social policy.
That admonition notwithstanding, the defense bar has largely suc-
ceeded so far in transforming the Bradford Hill points of view into
just further regressive and authoritarian hoops that plaintiffs have to
jump through.42 An illustration of the circularity in the legal standard is
a case involving Parlodel, a drug taken by women postpartum to sup-
press lactation. The court granted summary judgment against the plain-
tiff, who had never had hypertension but who suffered several strokes
after taking Parlodel. The parties had agreed that no meaningful epi-
demiology existed regarding the drug. Plaintiffs expert proposed to rely
on items of evidence that would inform several of the Bradford Hill
points of view, and explained the meaning of the Bradford Hill method-
ology as well as its scientic recognition. The court, however, accepted
the drug companys argument that the Bradford Hill factors were useful
only after a toxin/disease connection had been established by epi-
demiological evidence.43 Either disingenuously or ignorantly, the court
went on to state that by requiring an epidemiological study as a start-
ing point for application of the Bradford Hill criteria, the court is not
requiring [plaintiff] to provide an epidemiological study in order to
establish causation.44 Of course, the reality is that epidemiology is
required not because of the scientic usefulness of epidemiology but
because it occupies the place of necessary connectionthe aspect of
causation Hume showed was never demonstrablein the judicial imag-
ination. Perhaps imagination is not the right word. A mind-set so
narrow as to require that sort of privileged mysticism is stuck in a New-
tonian or even pre-Newtonian world. It cannot deal humanely or rigor-
ously with problems beyond the billiard balls.
This chapter is not about the many alternatives proposed to the ar-
chaic treatment of toxic torts currently imposed by U.S. courts. There is
a vast literature on that, suggesting everything from more legislative
compensation schemes45 to science courts to more modest procedural
and evidentiary reforms. Because the tort system is an incredibly inef-
cient health care regime, universal health care would solve some of the
60 | Intractable Questions

present hysteria. And the present system must become much more pre-
ventative. As it is, the requirements of courtroom proof actually dis-
courage manufacturers from conducting sufcient premarket testing
that might indicate a danger from their products.46 That is unaccept-
able; surely, a consistent and compulsory measure of good science prior
to consumer exposure, such as is emerging in the law of the European
Union, would be preferable to endless ghts about what is good science
once were at the mercy of the rickety U.S. torts system.
I am not saying that the law cant have standards and guideposts.
I cannot say often enough that I am not encouraging judges simply to
make stuff up. It is fanciful to suggest that they do, or that existing
institutions give them much room to do so, or that anybody teaching
law thinks it would be ne if they did. And I am not saying that there
arent facts of the matter, which are sometimes simple to ascertain
and that undeniably decide cases. Rather, Ive described how intracta-
ble metaphysical questions tend to pop up again and again in law, and
that even on questions of scientic fact, certain interests are reliably
served at the expense of others. I understand judges frustration with
the astronomical inefciencies in the common law resolution of toxic
torts. But that does not justify the embrace of scientistic dogmatism. It
is not that plaintiffs should win all of these cases; it is that they ought
not be stuck in the basement with the alleged furniture of the universe
jammed under the doorknob.
The reader may wonder what this has to do with feminist jurispru-
dence, and the answer is everything. The institutions, the rules, and
the facts are all engineered by people who, consciously or not, are
serving the patriarchal corporate masters. There. I said it. Let the reader
note that almost every example of toxic tort injustice to which Ive
referred has special relevance for women: thalidomidethe anti-morn-
ing-sickness drug that causes birth defects; Bendectinthe anti-morning-
sickness drug that causes birth defects; DESthe antimiscarriage drug
that causes cancer in both daughters and sons (and possibly the grand-
children) of the mothers who took it; Parlodela lactation-relief drug
that causes strokes; silicone breast implantsthe product that causes
autoimmune deciencies; Fen-Phen, a diet drug taken mostly by women
that causes strokes; antidepressants, the drugs that have multiple and
lethal side effects and that are overwhelmingly prescribed to women,
and, given the examples just listed, who can blame women for needing
Intractable Questions | 61

them? I havent even referred to other sex-specic toxic torts and the
injuries arising from them, from birth control pills to various IUDs to
killer tampons.
Is there a conspiracy in the tort system against women? Various stud-
ies conrm that women are hugely disproportionately hurt by the toxic
torts regime and the law of torts generally,47 and several scholars have
shown how that happens.48 But conspiracy connotes consciousness.
It would be fairer to say that scientic establishments and the torts sys-
tem have ignored women because women are not persons within their
learned habits of social investigation.49 Women have been relatively
expendable subjects of after-market research, the sell-and-see-later
approach encouraged by U.S. tort law.
The real sex discriminatory regime is this: women take the toxins
into their bodies because society tells them to; men are externally ex-
posed to toxins in their jobs. Of course, that is not uniformly true: all
sufferers from arthritis are internally exposed to the risks from Vioxx
and similar drugs; women in blue-collar jobs are externally exposed to
industrial toxins; I do not denigrate the class-oppressive connotations
of the jobs on which men are most often exposed. But the volun-
tary taking into the body of various toxins by women in order to ful-
ll social expectations of womanhood is a fundamental feminist issue.
Among the contexts of special concern are the burdens of reproduc-
tion and child rearing on women; the medicalization of reproduction;
the commodication of womens bodies and concomitant pressures on
women to conform to those images; and the chemical manipulation of
womens minds so that we dont go crazy (and that if we do, we wont
be too threatening). Industrys participation and prot in all of that are
feminist issues. Therefore, the disproportionate impact of courts treat-
ment of causation in toxic torts is a feminist issue.
Some princes in the court of privilege have argued that causation is
just an inarticulate groping for economically sound solutions.50 I am
dismayed by the extent to which judges, lawyers, and law students be-
lieve that. It isnt true; causation is not just that. Not without explicit
description of the nonmonetary economies at issue.
I am all for recognizing the indeterminacy of causation, and the inde-
terminacies inherent in many other legal questions. I am against easy
answers such as economically sound solutions. What will it take for
all lawyers and judges, in Professor Mari Matsudas immortal words, to
62 | Intractable Questions

ask the next questions? What will it take for every student, teacher,
lawyer, and judge to submit every assertion of causal or other fact to
scrutiny under the lenses of historical inequality?
In any case, the way to deal with intractable questions is not for
courts to pretend to scientic expertise or any other authority over
questions that have stumped the human mind for millennia. The way to
deal with intractable questions is to recognize them as such, to afrm
that the law cant avoid them, and then to attempt and rene method-
ologies that by denition lead only to provisional answers, with pri-
mary and honest focus on the purposes of the laws giving rise to the
ambiguities.
In this book, I want to expand the notion of toxicity. To my mind,
sexism, racism, homophobia, and all the other instruments of manipula-
tion of human fears, are toxins just as powerful as plutonium. They are
the ultimate weapons of mass destruction, and the law cannot be legiti-
mate without addressing them head on.
4

The Limits of Liberalism

How she longed to get out of that dark hall, and wander about
among those beds of bright owers and those cool fountains, but
she could not even get her head through the doorway; and even if
my head would go through, thought poor Alice, it would be of
very little use without my shoulders.
Lewis Carroll, Alice in Wonderland

So far, this book has criticized some of the conventional ex-


planations for legal power that initially attract lawyers, judges, and stu-
dents. In chapter 1, I related how institutional justicationssuch as
the magisterial invocation of the rule of laware meaningless with-
out commitments to the principles implied thereby. In chapter 2, I de-
scribed how approaches regressing always to radical doubt need to get
over themselves in order to be helpful in legal disputes. Allowing that
doubt will always be with us regarding particular questions, I focused in
chapter 3 on how what we call facts are themselves elaborate social
constructions that serve existing economic interests. In this chapter, I
expose the empty refuge of philosophical liberalismthe structure by
which law lets us live in our heads.
Given the difculties described so far, one wonders why the U.S. legal
system has worked at all. I believe U.S. law can attribute apparent suc-
cesses to the pervasive and usually invisible theoretical underpinnings of
liberalism. It is the unofcial politics, ethics, and psychology of the
United States. Liberalism is simply a philosophical theory, born of the
eighteenth-century Enlightenment, reappearing in multiple incarnations
since. It is important not to conate philosophical liberalism with polit-
ical liberalism. Indeed, those who in daily politics we call liberals and
conservatives are all philosophical liberals who agree on almost all
fundamental ideas, and whose disputes occur within a narrow eld.
Three attributes of liberal government have given it staying power: its

63
64 | The Limits of Liberalism

very specic ideology passes as neutrality; it makes its narrow conicts


look broader than they are; and very little actually changes amidst all
the sound and fury.

Liberal Human Nature and Liberal Society


So what is liberalism? Most political theory has an underlying theory of
human nature, and that is crucially so for liberalism. All features of lib-
eralism follow, however, from one powerful idea: individualism. First,
liberalism holds that the individual exists prior to society. The structures
of society are made of the bricks of individuals, and are simply the sum
of those parts. Second, all individualsat all times and at all places
share certain characteristics. The individual is a rational creature. More-
over, individuals are naturally self-interested. They will use their ratio-
nality to achieve their individual needs and desires. Humans have the
capacity for altruism, but any such inclination is in tension with the
more fundamental pursuit of self-interest. Third, the power of reason is
possessed in approximately equal amounts by all humans. But having
this level playing eld rarely means that the score will be tied. Instead,
individuals must invest their own industry in order for their desires to
be achieved. The natural result of equal capacities unequally utilized
will be social inequalities.
Liberal political theory brings this picture of humanity to another as-
sumption about the world: resources are and will remain scarce. Thus,
individuals are naturally in competition for available resources, and the
individuals program for fulllment of desires is subject to constant
interference from other individuals and their competing programs. The
political question is therefore how to organize society best to protect
opportunities for self-fulllment and to resolve inevitable conicts.
In the classical liberal conception, people create governments because
we cant get along in the state of nature. The purposes of government
are to provide defense from external threats, and domestically only to
provide conditions conducive to peaceful coexistence and self-fulll-
ment of all of the individuals thus described. This night watchman
theory of the state denes political power by its limits. It is a given that
the individual is primary and his self-determination must not be en-
croached upon unless absolutely necessary. Moreover, because the pro-
gram for self-fulllment is determinable only by each individual himself,
The Limits of Liberalism | 65

there is no basis on which the state could prefer some efforts at self-ful-
llment over others. The state must act, or appear to act, neutrally. In
light of all this, liberalism is constantly engaged in differentiating legiti-
mate exercises of state power from illegitimate exercises of state power.
Most of Western philosophy is organized around dualisms, and the
one most central to the liberal theory of limited government is the dis-
tinction between public and private realms of life. The state may reg-
ulate the former when necessary, but may not interfere in the lat-
ter. Liberals dispute among themselves which activities are public and
which are private, but they dont dispute the centrality of the public/pri-
vate distinction. This is what I meant about the short distance between
political liberals and political conservatives: they agree on the liberal
theory of human nature, and they agree about the theory of limited
government that follows from it. They disagree only about the specic
circumstances when the state may justiably encumber individual pref-
erences.
All of this is so engrained that, when recently rereading John Lockes
Second Treatise of Government,1 I felt as I felt the last time I saw a pro-
duction of Hamlet. It was so familiar that it was as if Shakespeare had
just strung a lot of clichs together.2 Similarly, the story of liberalism is
practically second nature for lawyers. It is the plot in the dispute be-
tween Federalists and Anti-Federalists during the drafting of the United
States Constitution: which structure of government would tend less
toward encroachment upon individual actions?3 It is the story of the
Lochner era in the rst third of the twentieth century: could worker
protections ever trump individual freedom of contract?4 More recently,
this mythic struggle was embodied by the threat or the promise, de-
pending on your point of view, of the Warren Court. That Court
loosed the equality principle, declaring in 1954 that black children
and white children had to go to public school together, in spite of indi-
vidual choices to the contrary as codied by representative bodies.5 The
question of the subsequent two decades was to just what degree govern-
mental power could limit individualism, importantly including enjoy-
ment of the fruits of individual industry. The Warren Court came scarily
or thrillingly close, depending on your point of view, to articulating a
constitutional requirement for the redistribution of wealth.6
In more general terms, twentieth-century liberal thought began to
move slightly away from the night watchman theory of the state in
recognition of the fact that the playing eld is not really level. The rst
66 | The Limits of Liberalism

area for adjustment of opportunities was the market economy, which


is not surprising, given the joint historical and theoretical heritage of
liberal theory and capitalism. When liberalism emerged, it expressed the
self-image and political needs of the simultaneously emerging bour-
geoisie. The political theories of John Locke and John Stuart Mill
worked in lockstep with the economic theory of Adam Smith. The pre-
sumption of scarcity and the focus on fulllment of self-interest justi-
ed and protected the institution of private property. Twentieth-century
mitigation of classical liberal assumptions has been in response to the
excesses of capitalism: as the rich got so much richer and the poor got
so much poorer, liberalism could not maintain its purely abstract egali-
tarianism.

The Dimensions of Liberalism


In demonstrating the narrow range and utter predictability of public
debate on allegedly profound disputes, Professor Catharine MacKinnon
has helpfully identied the ve cardinal dimensions of liberalism as
individualism, naturalism, voluntarism, idealism, and moralism. Profes-
sor MacKinnon illustrates how these dimensions work in the context of
the usual justications for mens magazines. In this litany, a model
who spreads her legs for a camera is acting voluntarily; she is a self-
determined individual and we should honor her choices. Moreover, her
photogenic body is a simple fact of nature, prior to its social construc-
tion through being viewed, that is merely captured on lm like any
other landscape. When anyone criticizes mens magazines, they become
thought police, hysterically attempting to regulate mere ideas when
everybody knows ideas have a harmless life of their own. Finally, critics
of mens magazines are dangerous to the American way of life; they are
attempting to shove their morality down everybody elses throat, when
liberalism has taught us that morality can be nothing more than individ-
ual opinion.7
If you are a law student, take down any casebook and select any
case. Odds are that you can nd at least one of these cardinal dimen-
sions in argumentation, if not dispositive of the matter at hand. I took
a quick look through the casebook Im now using in my Torts class.
Individualism: Three hundred drug companies made DES, an antimis-
carriage drug that caused cancer in children of pregnant women who
The Limits of Liberalism | 67

took it. It all happened long enough ago that it cannot be proven that
a given woman took doses manufactured by any particular company.
Each company wanted to defend on the ground that whoever did it to
this mothers daughter, it wasnt them, and even if that company acted
negligently, it is just un-American to hold anyone responsible (keeping
in mind that corporations possess most of the rights of individuals) for
some specic harm unless it can be shown that that company individu-
ally did it.8 Naturalism: a mans wife and friend had a sexual affair; the
man wanted the court to agree that the conduct was just transparently
outrageous, thus satisfying that element of a claim for intentional inic-
tion of emotional distress.9 Voluntarism: a thirteen-year-old girl com-
mitted a suicide that her high school ofcials might have prevented;
the high school defended on the ground that suicide is a deliberate,
intentional and intervening act for which no one else should be held
responsible.10 Idealism: a civically active man received anonymous and
threatening telephone calls over the course of twenty months. The court
said there was no harm done where there was no threat of physical
injury in the imminent future.11 Moralism: a casino patron keeled over
with a heart attack. The casino had an intubation kit but no one was
trained to use it. Too bad for the plaintiff. The law imposes no obliga-
tion to act in the aid of others. Where would such a morally intrusive
doctrine end?12
Silicone breast implants are another dramatic example. On the ques-
tion of individualism, popular discourse wants to hold women to the
claim that our bodies are our own. When some of us augment our
breasts, we are customizing our bodies like other people customize cars;
we are expressing ourselves. On the naturalism front, at one point large
breasts were said to be essential to womens mental health. Flat-chest-
edness causes a total lack of well being, amounting to a disease called
micromastia.13 Because the deformity was unnatural, so surely was
the corrective desire natural. Which leads us to voluntarism. It is true
that silicone implants were rushed to market without adequate test-
ing. It certainly appears that breast implants are a recent chapter in
a virtually uninterrupted history of painful alteration of the female
body for beautys sake.14 But cosmetic surgery is an elective change to
a healthy body. It is not even a choice of competing therapeutic treat-
ments. No one is forcing her to do it.15 And because beauty is in the
eye of the beholder, this is all about idealism. One womans self-objecti-
fying excess is another womans dcolletage. In the peroration of the
68 | The Limits of Liberalism

liberal argument, those feminists who criticize the breast implant indus-
try are un-American moralistic hysterics. The counterargument captures
the limits of liberalism: why is it that so many women decide to rebuild
themselves? Arent the forces at work a bit murkier than liberalism
wishes to acknowledge?
The liberal tradition has both ennobling and depressing aspects. We
partake of the best part of liberalism when we express admiration for a
persons accomplishments, particularly when she captains her own ship
through stormy waters. On the other hand, liberalism masks the nature
of accomplishment and belief. Everything worth doing takes a village.
No beliefs are formed in a vacuum. The radical individualism at the
heart of liberalism obscures the group-based nature of human enter-
prise, and encourages a race to the bottom in public discourse.
The radical relativism in liberal thought also tethers us to slow-
moving majoritarian politics, which itself transpires with agonizing dis-
ingenuousness. Perhaps most destructively, liberalism makes it systemat-
ically difcult to perceive or take responsibility for systematic violence
and power imbalances. These beliefs afrmatively discourage recogni-
tion of the group-based nature of social problems. Liberalism leads us
to think that every spilling of literal or gurative blood is an isolated
incident.16 If some (surely tiny!) subset of women chose to have
silicone breast implants because they had been socially beaten down
just for being women, and were desperate for any pathetic measure of
self esteem, and were also (completely unrelatedly, of course) unlucky
enough to develop debilitating autoimmune diseases, thats just the way
the liberal cookie crumbles.

Consequences for the Guarantee of Equality


Ive chosen to illustrate the consequences of liberal thought with equal-
ity law, not just because it has been the focus of my law practice but
because equality is the biggest thorn in liberalisms proverbial side. In
traditional liberal discourse, the predominant tension is between lib-
erty and equality. Take the situation of a country club, say, Augusta
National. It may exclude women from its golf course, be perfectly open
about that, and even enjoy widespread respect, so long as it is a private
organization. In the United States, when the value of equality bumps
up against the value of liberty, liberty interests usually win.17
The Limits of Liberalism | 69

The 14th Amendment to the U.S. Constitution guarantees to every


person the equal protection of the laws but doesnt dene what
equal means. The language doesnt tell us how to decide real cases. In
the United States, the measurement of equality has been based upon
Aristotles notion of justice: like cases must be treated alike. But how do
we know when cases are alike? What must be equal with respect to
what? Maybe every person should have exactly the same amount of
money in all conceivable circumstances. Maybe all persons whose last
names begin with S should be compelled to wear pink socks. I wont
get many votes for those interpretations. A socially useful denition of
equality requires multidimensional considerations that will necessarily
vary from case to case.
We can usefully consider the kinds of commitments that are called
for in equality law with reference to a spectrum, the left end represent-
ing the least governmental intrusion into individualistic ordering, and
the right end representing the most.18

formal equalitysubstantive equalityabsolute equality

This equality spectrum is a sort of Goldilocks problem: formal equal-


ity is not enough, absolute equality is too much, but substantive equal-
ity is just right.
Formal equality is just that, a matter of pure form. The word
equal in the Constitution connotes only a logical relation. If 2 = 2,
then both 2s must be treated exactly the same. However, 2 &
2.000013. Therefore, the numbers 2 and 2.000013 can justly be treated
differently. How would this play out in law? If any difference can be
discerned between any two individuals, they may justly be treated dif-
ferently. A former student named Sherry had a bushy head of red hair. I
dont. Suppose the Governor gave Sherry a Snickers bar and didnt give
me one. That would be just in a formal equality regime because she
has red hair. Sherry and I are at least as different from each other as 2
and 2.000013 are from each other.
This argument probably doesnt convince anyone. You cannot imag-
ine yourself standing up in court and arguing that red-headed people
are legally entitled to more peanut products covered with creamy nou-
gat, caramel, and chocolate. In U.S. constitutional law, we require that
any difference asserted to justify different treatment be at least ra-
tional. It would be ne if Sherry got the Snickers bar because I have
70 | The Limits of Liberalism

diabetes and she doesnt, but not because I dont have red hair and she
does.
Like formal equality, absolute equality (sometimes called assimi-
lationism) is fairly useless as a tool of social policy. In its extreme
form, absolute equality holds that no group-based differences should
ever count in guring out the appropriate distribution of governmental
burdens and benets.19 The perceived differences among people have
no inherent meaning. The signicance of any difference is simply what
we attach to it because of habit, laziness, or anxiety to impose order
however articialupon a senseless existence. Thus, the Aristotelian
formula is inherently circular. Cases are as like or as unalike as we
choose to make them.20
In an assimilationist mode, one could argue against laws that impose
much lower speed limits for vehicles in school zones. One could say that
these laws are destructive indulgences. Everyone needs to learn how to
dodge trafc, dont they?21 Hmm. That doesnt work any better than
giving preferential treatment based on hair color. Laws are generated
by purposes, and we have to have clear ways of talking about them.
When the government gives a functional reason for different treatment
(younger children are less capable of dealing with trafc), when that
reason is genuine (not a subterfuge for accomplishing some nefarious
purpose) and does not involve any historically suspect classications,
were pretty much ne with that legislation. We dont need to go much
further in the justication game. This is why we have legislatures, to
make choices to protect public well-being.
Law looks not just for a difference but for a difference that makes
sense. Having now rejected the concepts of both formal equality and
absolute equality, we are ineluctably left with the question: how
much sense does a difference have to make? How good does the reason
for different treatment have to be? According to our spectrum, we
would seem to be in the land of substantive equality, but what sub-
stance are we talking about?
There are no obvious logical answers here, just functional and histor-
ical ones. The historical reasons are far more contentious than func-
tional ones regarding, say, speed limits in school zones. That is, some
differences used to justify different treatment are bogus for historical
reasons: over time, some groups have gotten a raw deal. Thus, when
those bogus differences are asserted, there has to be an underlying good
The Limits of Liberalism | 71

reason (as opposed to a merely rational one) to justify a difference in


treatment between individuals.
To posit an unlikely scenario, suppose Sherry and I are otherwise
equally qualied for a job on the police force. It turns out that Sherry is
a U.S. citizen, and I am a resident alien. Historically, it is undeniably
true that legal immigrants have been denied a range of advantages.
Because of that, the police have to give a good reason to hire Sherry and
not me. According to the U.S. Supreme Court, they do have a good rea-
son: it makes enough sense for police personnel policies to assume that
citizens will have a greater investment in the fair and efcient enforce-
ment of law than noncitizens.22 Give us your tired, your poor, et al., so
long as they dont want to be cops. Here is why the discourse of equal-
ity law conventionally conicts with the individualist rhetoric of liber-
alism. My country of origin notwithstanding, I may actually be the
superior U.S. patriot. Sherry may be a pinko inltrator but gets away
with thwarting my program of self-fulllment and individual achieve-
ment by an accident of birth.
Some of the historically suspect reasons are more suspect than others.
In U.S. equality doctrine, the closest we have come to absolutely equal-
ity is with regard to race discrimination. Although it is not true that
race never counts, it is true that race rarely counts in legal argument as
a justication for distinguishing among persons or situations. If a racial
difference is asserted to justify different treatment of individuals (or
groups of individuals), there has to be not only a rational reason for it,
and not only a good reason for it, but a damn good reason for it. Lets
say that Sherry is an African American woman, and that Im a white
woman. Suppose we also live in a place where Sherry has access to pub-
licly funded sickle-cell anemia screening and I dont. If I complain about
that, I will lose. Sickle-cell anemia is a medical condition endured
almost exclusively by persons of African heritage. Screening everybody
else would be medically meaningless and a waste of public funds. If the
health department denies me this service because of my race, it has a
damn good reason.
But now were out in lawyer woo-woo land. There are a few race
discrimination cases involving sickle-cell anemia.23 Though sickle cell
anemia will gain civil rights traction as genetic testing becomes com-
mon, the existing cases are hardly historically representative of racism
in action. The reason that race discrimination demands a really damn
72 | The Limits of Liberalism

good justication is because in United States history, the reasons for


treating races differently were not only bogus, but evil.
Slavery and the complex social institutions that followed from it
were not mistakes of differentiation, or overreactions to real biological
differences, but atrocities. It is for those reasons that race discrimination
is paradigmatic of the meaning of inequality in this country. Remedying
histories of demonstrated persecution of groups of people is the entire
point of the guarantee of equality. Skin pigmentation is a proxy for his-
torical persecution. When law disappears the history and focuses on all
the possible permutations of difference, the guarantee of equality is
worse than futile; it is a monumental diversion of our resources.
So we have to focus on what we might mean by substantive equal-
ity, what versions of the guarantee of equality might be available
in that logical middle ground. It might be useful to visualize another
spectrum:24

meritocratic educational canada


equality of equality of and
opportunity opportunity beyond

The rst two of these are probably familiar to you, because they encom-
pass much of the territory contested in the context of afrmative action.
The meritocratic part is the notion that persons being compared are
otherwise equally qualied (or equally in need, or what have you).
If so, it is acceptable (within very narrow limits) to take into account
their race (or sex, or what have you) to give a tiny boost to the other-
wise equally qualied persons who have suffered historical discrimi-
nation. This is the similar situation requirement in U.S. Equal Pro-
tection doctrine. You cant get equality rights unless you show that you
are like the people with respect to whom youre being treated worse.
Educational equality of opportunity focuses slightly less on the re-
quirement of similar situation. The idea is that the law can intervene
(again, within narrow limits) to alter environments, recognizing that
environments can preclude individuals (note the consistent focus on in-
dividualismwe are still rmly rooted in liberal turf here) from reach-
ing a stage of development that could give them a plausible shot at
being equally qualied with, or similarly situated to, individuals from
more privileged backgrounds or living in circumstances that give them
The Limits of Liberalism | 73

disproportionate power. As of now, this is where public discourse in the


United States stalls.
Other hot issues in U.S. law fall under this rubric. One example is the
attempt by some cities to provide public education for groups at risk.
Detroit had ample data that its African American adolescent males were
a population in considerable danger, but that city was not allowed to
provide all-male schools for them.25 Young women face their own mul-
tiple risks. As an obvious example, pregnancy is closely correlated with
high school dropout rates. The city of New York has opened the Young
Womens Leadership School in East Harlem.26 It has not yet produced a
legal challenge.
The most contentious example right now is legislative reapportion-
ment, the power of state legislatures to congure voting districts every
ten years (or more often, in the case of Texas27) in order to reect dem-
ographic changes revealed by the Census. Though reapportionment
is not about education as such, I include it as an instance of educa-
tional equality of opportunity because it involves explicit recognition
of group-based historical discrimination, and empowers government
at least in theoryto give a leg up not based on a prior showing of
similar situation. That is, the Voting Rights Act of 1965 requires
that states assure appropriate representation of racial minorities in the
House of Representatives, though of course the states must do so within
the terms of the act and constitutional limits. Thats where the problems
have come. The United States Supreme Court has made rather a mess of
it. Disappearing history again, it has allowed states to tinker with vot-
ing district boundaries when to do so will dramatically stack the decks
for one political party,28 but the Court has imposed ever-more-stringent
requirements on reapportionment decisions that would likely increase
representatives of color.29
It turns out that neither meritocratic nor educational equality does
much for real equality. Because of the radical individualism at liberal-
isms core, these improvements are not very far from formal equality
at all. In the next two chapters, I will focus more specically on equal-
ity, and describe a vision of it that actually focuses on how structures of
domination by some groups over other groups were historically created
and are currently maintained. The feminist approach described there
dares to name the oppressions, dares to talk about white supremacy and
male supremacy, and heterosexism and global capitalist exploitation
74 | The Limits of Liberalism

systems that are astronomically and multitudinously effective in combi-


nationwithout cowering before the charges of political correctness or
moral imperialism.
These days, systems of oppression are not usually consciously main-
tained. That is where the tenets of liberalism get in the way of progress
for equality; because the harms of existing power structures are not
done intentionally, as it were, individuals are offended by what looks
like them to be efforts to deprive them of what they are and have be-
come all on their own initiative, individualism being the ultimate value.
And from the usually subconscious point of view of socially powerful
people, that is really the beauty part. The power grid is invisible and it
really works.

The Canadian Vision


On the doctrinal level, we have instructive articulations of the princi-
ple of substantive equality from Canadian courts. Canada ratied its
own Constitution only in the early 1980s, and since then, the Canadian
Courts have often looked to but rejected U.S. interpretations of similar
constitutional provisions. Consider seven principles, or my compilation
of seven features, of Canadian equality law that challenge the hegemony
of liberal thought.
First, Canada has a broader view of which groups, as groups, get
socially shafted. Section 15(1) of the Canadian Charter of Rights and
Freedoms prohibits discrimination on the bases of race, national or
ethnic origin, colour, religion, sex, age or mental or physical disability.
But the list is not exhaustive. A plaintiff states a constitutional claim if
her complaint is based on analogous grounds, that is, if her grouping
is characterized by stereotyping, prejudice, and historical disadvantage.
It is pursuant to the analogous grounds doctrine that sexual minori-
ties enjoy full constitutional protection in Canada.30
Second, not just anybody gets to claim that he or she is unequally
treated. You cant just be some optician in Oklahoma31 who wakes up
feeling unequal one morning in order to invoke constitutional equality
protection. You have to be a member of an enumerated group or show
that your group (or individual situation contextually conveyed) meets
the analogous grounds test.32 In the last decade or so in the United
States, Ive been amazed by how often privileged people and entities
The Limits of Liberalism | 75

describe themselves as victims, even as they decry the victimology


supposedly practiced by people who can actually demonstrate their own
historical disempowerment.33 Undoubtedly, it would help to unclog U.S.
courts dockets if we tightened access for those who are historically
privileged from asserting equality claims.
Third, in Canada, afrmative action is specically allowed in the
Charter of Rights and Freedoms.34 I cant think of anything that more
directly expresses a societys recognition that individualism is not the
be-all and end-all of the social contract, in any of its dimensions.
Fourth, in Canadian constitutional law, there are no levels of scru-
tiny. Once any constitutional claim has been stated, courts engage in
an explicit balancing test, to wit, asking whether a constitutional in-
fringement once proven is justied in a free and democratic society,
as required by Section 1 of the Canadian Charter.35 Some commentators
see this as a dispositive difference between American and Canadian con-
stitutional adjudication36 that may even justify U.S. lawyers ignorance
of Canadian law. But that criticism doesnt really clock the reality of
American practice. What we have in the United States is just perpetual
implicit balancing in all manner of constitutional cases, inefciently de-
layed and undemocratically obfuscated by the Byzantine regime of pre-
liminary tests.
Fifth, and usually most astonishing to U.S. lawyers, Canadian equal-
ity law has no requirement of a showing of similar situation. The
Canadians get that equality is a comparative concept but have accepted
that locating the relevant comparative group is not a matter of logic but
of examination of the context in which a claim arises.37 This difference
from American law made it relatively easy for the Canadian Supreme
Court to overcome one of the most embarrassing constitutional prin-
ciples of U.S. law, that pregnancy discrimination is not sex discrimi-
nation.38
Sixth, constitutional adjudication in Canada is expressly purposive,
what U.S. lawyers sneeringly call result-oriented, so that decisions
have explicit political content and are explicitly provisional. As former
Canadian Chief Justice Brian Dickson stated, [I]t is only where the law
is interpreted by an independent judiciary with vision, a sense of pur-
pose, and a profound sensitivity to societys values, that the rule of law,
and therefore the citizens rights and freedoms, are safe.39 I dont know
about other U.S. legal scholars, but Im ready to add vision, purpose,
and sensitivity to the rather reticent U.S. understandings of the rule of
76 | The Limits of Liberalism

law described in chapter 1. And we should also include Canadas rela-


tive fearlessness of majority rule in constitutional matters: that countrys
commitment to making equality real includes a willingness to order pro-
vincial legislatures to bring their games up to speed.40
Seventh, nally and most important from my point of view, in Can-
ada there is no requirement to nd intent to discriminate in order for
a constitutional equality claim to be proved.41 Think of how different
U.S. constitutional lawyerly lives would be if we didnt have to show
intent in constitutional equality cases.
I dont want to exaggerate Canadas success. The Charter is not per-
fect, its interpretations are not perfect, and many Canadian scholars are
working to ensure that people like me dont overidealize the Canadian
example. But working with Canadian equality law is refreshing because
Canada is simply not deterred by the alleged obstacles to doing better
that U.S. lawyers take as gospel. For example, in deciding that a claim
under the U.S. Equal Protection clause required a plaintiff to show the
governments intent to discriminate, our Supreme Court dragged out a
slippery slope argument that generally produced knowing nods from the
U.S. constitutional professoriate:

A rule that a statute designed to serve neutral ends is nevertheless in-


valid, absent compelling justication, if in practice it benets or burdens
one race more than another would be far-reaching and would raise seri-
ous questions about, and perhaps invalidate, a whole range of tax, wel-
fare, public service, regulatory, and licensing statutes that may be more
burdensome to the poor and to the average black than to the more
afuent white.42

The (perhaps idealized) Canadian response to this prospect is great.


Lets get after those discriminatory tax, welfare, public service, regu-
latory, and licensing statutes as soon as possible! Canada has done so
and there are no visible cracks in the foundation of that republic.

Beyond Liberalism
There is a lot about liberalism to love. Its historical emergence was
intertwined with the demise of feudalism and immortal manifestations
of the human spirit in art, science, and politics. There is no reason that
The Limits of Liberalism | 77

some of liberalisms ideas and commitments should not be retained.


However, there are lots of other ways to think about our species possi-
bilities. It may take some therapy for our national solipsism, but we
need only look around to see the possibilities. It will also take some
willingness to name problems out loud. Improving upon liberalism
means to expose the structures of privilege, that is, to recognize that all
of law is already an afrmative action plan for somebody (usually, for
whoever got to write the law).43 To make this case, however, requires at
least some consideration of alternatives to the tenets of liberalism.

Individualism. The self is a necessary but unprovable construct in law


as in life. The uniqueness of individuals, though a genetic reality, does-
nt have a lot of social meaning. The forces of conformity have aston-
ishing and insidious power. Whether by nature or nurture (itself an
intentionally obfuscating distinction), our individual identities are per-
manently uid and are largely functions of our coordinates in time and
space, functions particularly of our group memberships within culture.

Naturalism. Nothing in the world carries around or communicates its


own singular meaning. Nothing has to be as it seems to be. Those who
argue that some negative features of social life are inevitable almost
always have a stake in maintaining those features. There is a reason
why fundamentalism in all forms hates evolution theory. Fundamen-
talisms hold that there can be no change in anything. The central contri-
bution of Darwin was that nothing, not even human nature, is static.
The central idea of evolution is that species change, as necessary. It
would now seem necessary for the human species to change in innumer-
able ways and to embrace the processes of change, both to avoid mili-
tary annihilation and to ourish.

Voluntarism. Choice is one of the most highly contested concepts in


the legal world,44 and so I discuss the concept more fully in chapter 7.
In the meantime, though there may be some genuine determinists still
aroundthose who believe that free will doesnt existthe whole no-
tion is probably much more complicated. We do make choices and do
have responsibility for them, but one of those responsibilities is that we
must radically interrogate what we believe our choices to be. In much of
life, what we consent to is what we are conditioned to accept. We are
normalizedby popular culture, social norms, politicians, and histories
78 | The Limits of Liberalism

of violence willingly to undertake or accept lots of things that


arent good for us, our neighbors, or the planet. In many circumstances,
we are so constrained by social forces that we choose choicelessness.
Whenever the concept of choice or consent is invoked as legal justica-
tion, lets take a closer look at what is really going on.45

Idealism. Whoever convinced us that words and ideas dont have an


impact on reality had an incredible impact on reality. It is amazing that
we still entertain this axiom, when every advertiser and other practi-
tioner of realpolitik knows the opposite: if you say something often
enough, people are increasingly likely to believe it is true. An alternative
to liberalism accepts that words and ideas matter a great deal, and are
in fact constitutive of reality.46

Moralism. I dont think that the distinction between moral judgments


and other judgments has much use any more. In referring in this book
to the emerging eld of virtue ethics, I am asking the reader to recon-
sider the human virtues described by Aristotle. The original list that
he so admirably explainedhonesty, courage, wisdom, and generosity
neednt be understood as an essentialist nal word on ethics. We
dont even have to call the listed items virtues. But Aristotles is a
pretty good list, a set of topics that inform pragmatic thought as well as
describe whatever our species has gotten right. Whatever you want to
call it, there is no way around moral dispute. The cardinal dimensions
of liberalism are thoroughly moral, in the sense of representing choices
about the way the world should work and the way people should
behave or aspire to behave. People seem to require norms and mytholo-
gies to help us nd our way about. But morals, norms, and myths are
only and ever products of communication rather than of individual
invention.
It was only in the 2004 election season that I grasped the profundity
of President Franklin Roosevelts admonition that the only thing we
have to fear is fear itself. Heated moral sloganeering has displaced
discourse. That fundamental stupidity is a function of our fears: fears
of contingency,47 of unimportance,48 and of our inevitable dependency
on others.49 Only participation in moral discourse allows us to go
beyond fear. The ethic of communication must be to resist dogmatism,
particularly in subconscious or invisible forms. Good-faith communi-
cation requires, ironically, a return to individualism of a sort, a perpet-
The Limits of Liberalism | 79

ually questioning individualism that liberalism actually inhibits.50 And


that aspiration is inexorably a function of community identication.
The late great Andrea Dworkin put it this way:

The fundamental knowledge that women are a class having a common


conditionthat the fate of one woman is tied substantively to the fate
of all womentoughens feminist theory and practice. That fundamen-
tal knowledge is an almost unbearable test of seriousness.51

If it is worth our participation at all, the rule of law cannot be just a


sedative, or a shroud for greed. Nor am I willing to settle for the depres-
sive vision of liberalism, that law serves only to regulate the competi-
tion among self-interested individual entities. I am not a fundamentalist.
I believe that the principle of evolution applies to institutions and indi-
viduals as well as to biological events. A more evolved, more mature
legal system will be feminist in the sense that it will comprehend the
complexities of equality. Just as individual maturity requires reexamina-
tion by every person of many perceived slightscomprehending among
other things that you dont shoot people or have a t or le a lawsuit
just because you woke up feeling unequal todaylegal maturity re-
quires the incorporation of feminist insights.
We will all be feminists when we embrace the world-making respon-
sibilities of language users, and thereby learn how to participate in com-
munities. Not just in any one community, but with all communities as
communities, whether or not we belong to them, in compassion and
solidarity.
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part ii

Places beyond Stuckness


Feminist Notions, Controversies,
and Promises
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5

Feminist Legal Theory

People sure get nervous when a womans free.


Trisha Yearwood

Everything I know about being a lawyer has been through


the emergence of what came to be known as feminist jurisprudence.
What I call feminism is not a way of thinking conned to persons
born female. Rather, this feminism is the concrete analysis of systematic
oppressions, which analysis has led to a critique of objectivity in episte-
mological, psychological, and socialas well as legalterms. There is
no female point of view nor any male point of view corresponding
to an individuals membership in a biologically dened group.1 Rather,
there is a socially constructed process that conscripts people into a gen-
dered way of seeing the world. This process includes not only rites of
genderization for individuals but also habits of thinking that are contin-
gent but powerful. Among those habits is the division of the world into
knowing subjects and known objects, that is, the habit of dividing per-
ceptions between those that are subjective and those that are objective.
In the understandable rush to render feminist work acceptable in tra-
ditional terms, it is sometimes suggested that feminist lawyers ought to
advertise our insights as the best among competing revivals of the Legal
Realism of the 1930s. All outsiders are surely indebted to the Realists
for their convincing demonstration that the law could not be described,
as the formalists and positivists had hoped, as a scientic enterprise,
devoid of moral or political content. The Realists description of the
inuence of morality, economics, and politics upon law is the rst step
in developing an antidote for legal solipsism. In the end, however, Real-
ism was not courageous enough for feminism. The Realists did not rev-
olutionize the law but only expanded the concept of legal process.2 The
Realists did not press their critique deeply enough; they did not bring

83
84 | Feminist Legal Theory

home its implications. In the face of their failure, the system has clung
even more desperately to objectivity and neutrality.
As described in the previous chapter, liberalism is the unifying theme
of most contemporary jurisprudential debate. The Ronald Dworkin
slightly-left liberals, the Antonin Scalia pretty-far-right liberals, the Law
and Economics scholarsall of these people share classic liberal as-
sumptions. Liberalism has the lure of the abstract and the universal.
It purports to rise above the grime of detailed daily life. It holds the
promise of objectivity.
The legal feminism emerging in the 1960s began in that liberal mode.
It involved challenging the exclusion of women from equal opportuni-
ties of all sorts. The thrust of the approach was to argue for neutrality
in legal standards, that is, for a legal rule regarding women that did
not take sex into account. That led a group of feminist scholars in the
1970s and 80sit surely led me3 to waste a lot of time bickering
about rules and standards in the abstract. I thought that if feminist
lawyers could just set out our principles precisely enough, if we offered
a new, improved equality standard just one more time, then there would
be justice in the world.
The equality standard did change,4 but the world didnt, except for
the privileged few. It was a time of stuckness for me, until I read the
book Catharine MacKinnon wrote in 1979, called Sexual Harassment
of Working Women. In it, she demonstrated that the engine of the lib-
eral machine is the differences approach.5 If women ask to be treated
the same as men on the grounds that we are the same as men, then we
concede that we have no claim to equality in contexts where we are not
the same as men, whether as matters of biology or as matters of social
fact. Slowly the people doing this work came to realize the need to resist
abstraction, to realize that perception is not just given but is directed by
socially constructed power relations. Thus we also learned the need to
resist domestication of our own thought.
In the liberal realm, the engine of the struggle for equality has been
Aristotelian. Equality means to treat like persons alike, and unlike per-
sons unlike.6 In this system, everything depends upon accuracy in as-
sessing the similarities and differences among situations. The deciency
in the system is always brought home to me by the fact of how recently
the U.S. Supreme Court let women in the equal protection door. That
was in 1971, in a case invalidating an Idaho statute that preferred males
over females for appointment as administrators of intestate estates.7 In
Feminist Legal Theory | 85

Reed v. Reed, the Court held that the state of Idaho could not presump-
tively deny to women the right to administer estates. With respect to
such activities, the Court saw that women and men are similarly situ-
ated. That is, no discernible difference between the sexes justied
treating them differently.
In the evolution of the differences approach, all was going swim-
mingly until the Court had to face situations where the sexes are not,
or do not seem to be, similarly situated situations involving preg-
nancy, situations involving the supposed overpowering sexual allure
that women present to men, and situations involving the historical ab-
sence of women.8 When the differences approach was applied in those
cases, the plaintiffs lost. Feminist legal scholars then devoted enormous
energies to patching the cracks in the differences approach. The debate
was arduous. Which differences between the sexes are or should be rele-
vant for legal purposes? How does one tell what the differences are?
Does it matter whether the differences are inherent or the result of up-
bringing? Is it enough to distinguish between accurate and inaccurate
stereotyped differences? Or are there situations where differences are
sufciently real and permanent to demand social accommodation?
It was not possible, ultimately, to describe a theory of womens rights
that t the discrete, nonstereotypical, real differences between the
sexes. Attempting to do so exacerbated the underlying problemthe
objectication of womenand enlisted us in reication of the vocabu-
lary, epistemology, and the political theory of the law as it is. The ju-
dicial diagnosis of the problem in Reed v. Reed was an example. It
assumed that some mistake of differentiation had occurred. It amounted
to saying, Gee, come to think of it, there really isnt a very good reason
to prevent women from administering estates in Idaho. What was Idaho
thinking? And once the Court discovered that mistake, it needed to
construct an objective rule to govern it, a rule that appeared to tran-
scend results in particular cases.9
Philosopher Carol Gould has named this aspect of liberal theory, so
central to the U.S. constitutional approach, as abstract universality.10
In order to apply a rule neutrally in future cases, one must discern a
priori what the differences and similarities among groups are. But be-
cause there are an innite number of differences and similarities among
groups, one must also discern which differences are relevant. To make
this determination, one must rst abstract the essential and universal
similarities among humans; one must have strict assumptions about
86 | Feminist Legal Theory

human nature as such. Without such an abstraction, there is no way to


talk about which differences in treatment are arbitrary and which are
justied.11
Thus, somewhere in the nature of things there must be a list of differ-
ences among people that matter and those that do not. Notice, however,
that abstract universality by its own terms cannot arrive at such a list. It
has no bridge to the concrete12 by which to ascertain the emerging
and cultural qualities that constitute difference. It is a conception of the
world that takes the part for the whole, the particular for the universal
and essential, or the present for the eternal.13
As workers in this project became more familiar with structures of
power, we saw how abstract universality made those with power the
norm of what is human, and did so sub rosa, all in the name of neutral-
ity. Maleness denes human; whiteness denes human; heterosexuality
denes human. And the values held by powerful people are made to
appear as if they were qualities inherent in a world out there. By this
subterranean system, the relevant differences have been those that
keep less powerful people in their place.
With the allegedly anonymous picture of humanity thus painted,
women, for example, are but male subjectivity gloried, objectied, and
elevated to the status of reality. So goes the process of objectication:
the winner is he who makes his world seem necessary. Professor Mac-
Kinnon expressed this insight in one of her most famous passages:

[M]ale dominance is perhaps the most pervasive and tenacious system


of power in history . . . it is metaphysically nearly perfect. Its point of
view is the standard for point-of-viewlessness; its particularity the
meaning of universality. Its force is exercised as consent, its authority as
participation, its supremacy as the paradigm of order, its control as the
denition of legitimacy.14

Long ago, I wrote that [f]eminist analysis begins with the principle
that objective reality is a myth.15 This assertion struck some commen-
tators as proof that feminist legal theorists were dangerous fruitcakes.16
That reaction strikes me in turn as exemplary of the totalizing nature
of liberalism and its fearful resistance to anything that is not an exam-
ple of dichotomized thought. I never said that the notion of objective
reality was useless, either strategically or practically. My description of
objective reality as mythic was not necessarily to denigrate it, for myth
Feminist Legal Theory | 87

can be a positively transformative category of communication.17 My


characterization was simply to underscore the need for modesty in mat-
ters of knowledge. Not only can our species often not know what the
facts of the world are but claims to objectivity are often cover for
dogmatism. Knowledge is always open to revision. Vigilance about
that insight can dethrone those aspects of objective reality that cover
for human misery.
Among the most pernicious of these mythsright up there with the
belief in objectivityis that the domination of women reects a nat-
ural biological order.18 The paradigm of the will of the father informs
rationality at every historical stage. For example, Aristotles description
of woman as partial man19 was prototypical of justications for domi-
nation, from Christianity to Freud, through social Darwinism, and in-
cluding economic and scientic explanations of the social order. The
narcotic inuence of the notion of objectivity dulls alertness to that his-
torical theme of partiality.
I consider it signicant that the demise of legal formalismthe idea
that neutral legal rules could be mechanically applied to objectively
known facts to determine a resultwas concurrent with the rise of
modern physics. For example, Palsgraf v. Long Island Railway,20 the
case that rmly displaced legal causation from the arena of objective
fact into the arena of policy judgment, appeared at the same time
that Werner Heisenberg formulated his uncertainty principle.21 Physics,
the same eld that for centuries exemplied the dichotomy between
individual mind and external world, said with Heisenbergs voice that
the two were inevitably interrelated. According to Heisenberg, the more
precisely an observer tries to take one measurement of electron status,
the more the accuracy in another measurement is skewed. Put more
broadly, the observer inevitably transforms the observed system. After
Heisenberg, there was no longer any clear division between the know-
ing subject and the known object. The demise of the subject/object split
on the quantum level suggests that lawyers should at least acknowledge
its contingency on the legal level.22
A legal system must attempt to assure fairness. Fairness must have
reference to real human predicaments. Abstract universality is a conve-
nient device for some philosophical pursuits, or for any endeavor whose
means can stand without ends, but it is particularly unsuited for law.
Law is, after all, a social tool. It is only extrinsically important. Its
actual value depends upon its success in promoting goals that people
88 | Feminist Legal Theory

decide are worth promoting. By inquiring into the mythic structure of


objectivity, we see that abstract universality explicitly contradicts the
ideal of a government of laws, not men. Our task, therefore, is to
construct a system that avoids solipsism, that recognizes that the point
of view of the law-maker is not the whole of reality.
Feminist thinking has evolved dramatically in the past twenty-ve
years, from an essentially liberal attack on the absence of women in the
public world to a radical vision of the transformation of that world.
The demand for gender neutrality that served valiantly in the legal
struggles of the 1970s has inevitably become a critique of neutrality
itself, a critique which proceeds by an admittedly nonneutral method.
Explanations of our method usually provoke the charge of nominalism,
such is the staying power of the ideal of objectivity. Feminist method
would appear to be an easy target for that weapon. The feminism I
practice does not claim to be objective because objectivity is the basis
for inequality. Feminism is not abstract because abstraction when insti-
tutionalized shields the status quo from critique. At the risk of incurring
the scorn of the Wall Street Journal, I will even admit that this feminism
is result-oriented. However, I believe that to be a very modest claim. It
means only that the laws actual effect in the world matters more than
the laws simply being in the world. It means that if society is not get-
ting positive results from law as it is, society needs to rewrite or reinter-
pret the law.
The next step for theory is therefore to demonstrate that feminist
method leads to principled adjudication and more dignity for every-
body. Power relationships manifest themselves by negating that which is
not powerful. Thus, both male supremacy and white supremacy dene
self and other important concepts by that which is nonmale and non-
white. In order to be a valorized self, there must be a negativized
other.23 As postmodern theories have demonstrated repeatedly, the
prevailing notion of rationality divides the world between all that is
good and all that is badbetween objective and subjective, light and
shadow, natural and unnatural, white and nonwhite, man and woman.
For all of these dichotomies (and there are scores more), the goodness
of the good side is dened by what it is not. The approach I endorse
rejects the objecticationthe otheringof parties to disputes. This
approach has the virtue of expanding the context of disputes, of follow-
ing the connections among people and events. It does not insist upon
uncovering an essence of the problem but looks for a solution that is
Feminist Legal Theory | 89

coherent with the rest of experience. This is not a choice between male
domination and female domination. The choice is, rather, between a
compulsion to control reality and a far less anxious understanding of
how language users actually function in their environments.24

Philosophical Relief
When I was in college, and torn by the antimonies of philosophy de-
scribed in chapter 3, I was rescued by the philosophy of Ludwig Witt-
genstein. Wittgenstein is fun to read and spells relief regarding some
persistently knotty concepts akin to objectivity and universality. Con-
sider Wittgensteins explanation of the concept of games. It is a con-
cept we all use with great success. But lets mystify it in a lawyerly way.
Suppose you are a judge. Suppose there is an ordinance prohibiting
the playing of games in the park. Suppose further that the ordinance
doesnt dene games, but that a citizen has been given a ticket for
doing a crossword puzzle on a park bench. Was the citizen violating the
statute? In conventional legal debate, it is assumed that you need to
shine some sort of pure light of reason on the concept of games in
order to distill the essence of the concept. Legal thought assumes further
that the legislature, when using the word games, was acting on some
essentialist basis. In that idealized world, that is what legislatures do:
they identify the unique facts of some matter, and then create a policy to
respond to those facts. The legislature just rearranges the furniture of
the universe.
Is this how legislatures and judges really go about their businesses?
In our example, is this how you as the judge should conceive of the sit-
uation? Wittgenstein would think that approach was a waste of your
time.

[L]ook and see whether there is anything common to all [games]. For if
you look at them you will not see something that is common to all, but
similarities, relationships, and a whole series of them at that. To repeat:
dont think, but look.25

Language doesnt point to some essential reality. Language is, instead,


what our species does. And the way we do language is an incremental
process.
90 | Feminist Legal Theory

[W]e extend our concept . . . as in spinning a thread we twist bre on


bre. And the strength of the thread does not reside in the fact that
some one bre runs through its whole length, but in the overlapping of
many bres.26

As the judge in the crossword puzzle case, you may hope that there is
a legislative history that tells you what sort of games the legislature was
worried about. But there may be no legislative history, or what there is
may not help in a particular case. Youre going to have to consider more
than the words, and even more than what the legislature supposedly
intended by them. Consider another Wittgensteinian example:

Someone says to me: Shew the children a game. I teach them gaming
with dice, and the other says I didnt mean that sort of game. Must
the exclusion of the game with dice have come before his mind when he
gave me the order?27

In this variation on our hypothetical, youre the person who has to de-
cide whether Wittgenstein should be charged with corruption of minors.
It doesnt depend on whether the legislature actually considered playing
with dice as an example of corruption. Your decision does not depend
upon whether gaming with dice falls neatly within the statutory term,
nor upon any objectively determinable similarity or difference between
this activity and others that the legislature considered as instances of
corruption. Your decision depends upon a larger context that is not
neutral or objective at all.
Law, like language that is its medium, is a system of classication. To
characterize similarities and differences among situations is a key step in
legal judgments. That step, however, is not a mechanistic manipulation
of essences. Rather, that step always has an evaluative crux. It requires a
sophisticated theory of differentiation, something that feminism is par-
ticularly adept at doing. Finding the crux depends upon the relation
among things, not upon their opposition. By looking around, language
users acquire examples by which they can grasp a concept. Then lan-
guage users recognize other examples, not because of a shared essence,
but because of some purposive analogy. The scope and limits of any
analogy must be explored in each case, with social reality as the guide.
This is a normative but not illogical process. Any logic is a norm, and
cannot be used except with reference to its purposes.
Feminist Legal Theory | 91

Wittgenstein believed that his work with language was obvious, that
he was supplying observations which no one has doubted, but which
have escaped remark only because they are always before our eyes.28
As a linguistic enterprise, law has the tools of language available to it,
including rules, standards, categories, and modes of interpretation. All
of these tools are merely means for economy in thought and communi-
cation. They make it possible for us to pursue justice without reinvent-
ing every wheel at every turn. But means must not be turned into ends.
In feminist thought, deciding what differences are relevant for any
purpose does not require objectifying and destroying some other.
This feminist approach does not elevate some point of view to the level
of principle and then dene others out of existence. This feminism takes
the variousness in point of view as constitutive of social life. It sees dif-
ferences as systematically related to one another, and to other relations,
such as exploited and exploiter. It regards differences as emergent, as
always changing.29
Consider the extended Wittgensteinian example above but substitute
the concept of inequality for the concept of games. Is there an
essence of inequality that we will spot if we think hard enough? No.
Oppression is not a descriptive mistake, and we cant think our way out
of centuries of renements in its mechanisms and uidity in day-to-day
manifestations. When the priority is to understand differences and to
value multiplicity, lawyers are obligated to discern between occasions of
respect and occasions of oppression. Those are judgments we know
how to make, even without a four-part test to tell us for every future
circumstance, what constitutes inequality.
By denition, the concept of inequality is inexact.

Only let us understand what inexact means. For it does not mean
unusable.30

One might say that the concept game is a concept with blurred edges.
But is a blurred concept a concept at allIs an indistinct photo-
graph a picture of a person at all? Is it even always an advantage to
replace an indistinct picture by a sharp one? Isnt the indistinct one
often exactly what we need?31

A precise picture of a fuzzy scene is a fuzzy picture. Inequality comes in


many forms. Its mechanisms are so insidious and so powerful that we
92 | Feminist Legal Theory

could never codify its essence. The approach that uses no ostensibly
neutral formula but that points to the crux of the matter in a social con-
text is exactly what we need.
The admonition that lawyers should engage in explicit evaluative
debate sounds scary because we have been taught to distrust meta-
physics. But I am not asserting that this enterprise is governed by any
foundational norm; I am not asserting that there is a right answer or
even necessarily some correct contours of debate. When lawyers are
faced with hard cases, it is almost always my experience that everybody
knows exactly what the real stakes are, even if we dont always know
how to talk about them. The business of living and progressing within
our disciplines requires that we give up on objective verication at
various critical moments, such as when we rely upon gravity,32 or upon
the existence of others,33 or upon the principle of verication itself. Law
needs some epistemological and psychological sophistication. Jurispru-
dence will forever be stuck in a postrealist battle of subjectivities, with
all the discomfort that has represented, until we confront the distinction
between knowing subject and known object.
My admission of result-orientation does not import the renunciation
of all standards. In a system dened by constitutional norms such as
equality, we need standards to help us make connections among norms,
and to help us see family resemblances34 among instances of domina-
tion. Standards, however, are not means without ends. They never have
and never can be more than working hypotheses.35 Just as it would be
shocking to nd a case that said, The petitioner wins though she satis-
ed no criteria, so it must ultimately be wrong to keep nding cases
that essentially say, Petitioner loses though the criteria are indefensi-
ble. In legal situations, a case is either conformed to a standard or the
standard is modied with justication. That justication should not be
that we like the petitioners facts better; rather, it is that on facts
such as these, the standard doesnt hold up.

A Better Standard
Why not have an equality standard that focuses on the issues of domi-
nation, disadvantage, and disempowerment instead of on the issues of
difference? I endorse a standard proposed by Professor MacKinnon that
she calls the inequality approach. The test in any challenge should be
Feminist Legal Theory | 93

whether the policy or practice in question integrally contributes to the


maintenance of an underclass or a deprived position because of gender
status.36
This would not be a hugely radical departure. Back in 1979, when
Professor MacKinnon proposed this standard, she identied the extent
to which U.S. equality law had essentially already embraced it. To be
sure, there was and is a somewhat fractured consciousness about in-
equality in American law. To me, the encouraging part is that we
already have this progressive standard out there on the interpretive
turf.37 It has not completely lost out, and its presence has not caused
discernible damage to other ideals that the legal system holds dear.
Moreover, other democracies have adopted interpretations of their con-
stitutional guarantees of equality that look a lot like the MacKinnon
standard.38 Those interpretations are conrmation of the practicality of
her approach.
Such a standard would not immediately dispose of all recurring
problems but would analyze them differently. Consider the problem of
stereotyping. The notion of stereotyping connotes various often over-
lapping problems,39 including falsication of group characteristics, over-
simplication of group characteristics, inattention to individual char-
acteristics, lack of seriousness, and invariance. Even the differences
approach could attack stereotyping without difculty when the chal-
lenged practice is based upon an untrue or overbroad generalization.
Only the inequality approach, however, can address two other problems
of stereotyping: rst, the need for a reliable approach to generalizations
that are largely true (either because of biology or because of highly suc-
cessful socialization, what Professor Anthony Appiah calls normative
stereotypes40), and second, the need to distinguish between benecial
and burdensome legislation.
In the gender context, the normative stereotypes that the differ-
ences approach reinforced were often tied to biological differences be-
tween men and women.41 Thereby, the reasons for having antidiscrimi-
nation laws have been seen as reasons to allow discrimination. The
inequality approach unravels the tautology. Under the inequality ap-
proach, different treatment based upon unique physical characteristics
would be among the rst to trigger suspicion and scrutiny.42 It makes
no sense to say that equality is guaranteed only when the sexes are
already equal. The issue is not freedom to be treated without regard
to sex; the issue is freedom from systematic subordination because of
94 | Feminist Legal Theory

sex.43 Thus, the inequality approach would reach not only false stereo-
types but also stereotypes (such as womens unequal child-rearing re-
sponsibilities) that have largely made themselves true through a history
of inequality.
The inequality approach provides a more historical and less deter-
ministic analysis of benecial classicationswhat in the United States
we agonizingly debate as afrmative action. When a preference is
provided for members of an historically disenfranchised group, the only
stereotype denitely being reinforced is that the group has been
historically disenfranchised. The only indelible message is that history
counts, and cant be stipulated away by adherence to a nineteenth-
century universalist notion of human nature and human capabilities.
Seriousness about recognizing and condemning supremacist systems
requires seeing how systems work. Disadvantage replicates and legit-
imizes itself. It is unhelpful to become hysterical about how members of
these groups can do it themselves and ought not be stigmatized for not
having done it themselves thus far. There is nothing wrong with getting
societal help. Indeed, formerly disenfranchised groups could not have
become enfranchised without the actions of surrogates.44 That has not
required that the groups thus assisted conform for all time to the surro-
gates perceptions of them (or even to their own perceptions of them-
selves).
Injustice does not ow directly from recognizing differences; injustice
results when those differences are transformed into social deprivation.
Surely, afrmative action ought not be a slapdash undertaking. Afrma-
tive action requires some discernment about how history has operated.
Insofar as an afrmative action program oversimplies, however, it is an
oversimplication in the service of a profound complexity, as is any
well-drafted policy. Such a program evinces laudable seriousness toward
the problem, especially if the program assists in the recognition and
relinquishment of privilege. And such programs are not invariant. By
denition, they point to stereotypes for the purpose of undoing them.
When allegedly benecial classications do not have this form,45 or
when once benecial schemes cease to have it, the inequality approach
would prohibit them.
The inequality approach requires an investigation that must delve as
deeply as circumstances demand into whether the challenged policy or
practice exploits gender status. To worry in the abstract about which
standard should be applied at what time is to replicate the fallacy of
Feminist Legal Theory | 95

the differences approach. Logic is no obstacle to the implementation of


the inequality approach. The obstacles are, rather, perception and com-
mitment.
If perception can be facilitated, which I believe it can, and commit-
ment can be serious, which I know it is, it doesnt matter so much
exactly what feminist lawyers call this approach. We do, however, need
to avoid both underinclusiveness and overinclusiveness and otherwise
not fall for the traps of domestication. For example, I noted in the
introduction that because the term feminism sometimes triggers hos-
tility,46 perhaps the sort of understanding I support should be called
something elseperhaps gender mainstreaming or antisubordina-
tion theory would be better.
I noted that gender mainstreaming is the name given by the mem-
ber states of the European Union to its admirable commitment to sex
equality, but I also warned that the gender mainstreaming notion seems
to carry on its face a threat of domestication. Although some people
regard feminism as too oppositional, gender mainstreaming may be
insufciently oppositional, in that it does not name existing social insti-
tutions such as male supremacy for what they are and what they do.
The image conjured is of mainstream society bumping merrily along
while gender is also happening somewhere along the margins. The solu-
tion is just to come on in here, little lady, and tell us whats up. Some
of the participants in the European debate understand this danger
and rightly see the tension in all of feminism, caught as it historically
has been between being a political movement and [becoming] a part
of institutionalized mechanisms of political theory.47 Surely it is true
that permanent struggleotherwise known as political consciousness
must remain a part of the feminist project, whatever we call it.48 I am
just disinclined to slap the happy-face title gender mainstreaming on
it before we have a sense of what it will achieve.
What is generally known as antisubordination theory, on the other
hand, presents less of a threat of domestication. While antisubordi-
nation theory has a distinguished feminist heritage,49 it is now used
productively in a variety of antidiscrimination contexts.50 I am daily
heartened by these proliferations and creative articulations, and I de-
nitely consider myself an antisubordination theorist, practitioner, and
teacher.
It is still critical, however, both to avoid the conation of different
aspects of social subordination and to deepen understanding of the
96 | Feminist Legal Theory

complexities in how systems of subordination reinforce one another.51


Earlier in this chapter, I emphasized the dichotomization of the world
that underlies existing structures of social power, including the structure
called reason. I dont think progressive people should reify or recon-
struct those axes52 but do think we must appreciate that in the present
scheme of things, different axes reinforce somewhat different structures
of social control, and have somewhat different emphases. The gendered
axis, for example, separates out not only male from female but also so-
ciety from nature, enterprise from homeyness, and history from love.53
This has given us a society built around what Aldous Huxley called
organized lovelessness. The enterprise of making history becomes a
compulsive concentration on what can be predicted, controlled, ma-
nipulated, possessed and preserved, piled up and counted.54
Feminism brings a number of psychological lenses through which we
might consider these large questions of history making. Of course, all
subordinations produce and are produced by psychological scar tissue.
It cannot be only gendered pathologies that cause our species habits of
subordination (and even of being subordinated).55 There do seem to be
common psychological aspects to the strategies of othering and group
devaluation that existing structures of domination and subordination
exhibit. From a psychoanalytic point of view, it is likely that those in-
stitutions share spooky erotic/thanotic roots.56 In terms of the foot-
ball metaphors that public gures cannot refrain from using, maybe
each of these social failures is another broken play en route to a los-
ing season.57
It is possible that were just a loser species, but Im unprepared to
embrace suicide as destiny. Psychology is atop the elds that must re-
sist essentialism. Particularly in psychoanalytic thought, morbid aspects
of human nature are portrayedhence, justiedas unavoidable and
unchangeable. But even if not structurally necessary, psychological
habits are morbid. They cant be merely wished away. So I would ask
some indulgence in using the terms of psychoanalysis because they help
to illustrate an example of feminist legal theory in action, as it were:
women in the military.
The recurring issue of women in the militarywhich is itself a subset
of the fundamental social issue of the uses and abuses of military power
presents a near-perfect illustration of the potential of feminist legal
theory. How could anyone possibly explain what war is and why it still
Feminist Legal Theory | 97

exists without some reference to gendered realities? Both manhood


and womanhood are mythic vortexes. Historically and in most cul-
tures, both manhood and womanhood require conscription into
and endurance of rites of genderization. In twentieth-century Western
intellectual history, surely Sigmund Freuds accounts of becoming male
and female are most familiar. Those accounts are unnecessarily static
and depressing, not to mention their role as elaborate justications for
patriarchal violence. But the cruelty in Freuds descriptions of gender-
ization rings true for many people.
For present purposes, to the brutality of the Freudian account I
would add Simone de Beauvoirs analysis of the symbiotic nature of sex-
ual pathology. Both sexes, at least in their gendered roles, keep the
world crazy. A person in the feminine roleas nurturer, worrier, and
lamentermay have no say in decisions of historical importance, but
she does get benets: she gains the approval of those who are power-
ful, and, of course, she does not have to take responsibility for making
ugly historical decisions.58 A person in the masculine roleas warrior,
as history-maker, and as keeper of womanavoids moral responsibility
for his actions and need not admit the ugliness of aggressive behavior.
He has women there to ventilate the difcult emotions. In this story,
women do the weeping for the world, while the mad megamachine
rolls on.59
With that pathology in mind, lets look at the present situation of
women in the U.S. military. After the tribulations of Vietnam, in 1973
the United States ended the military draft. The all-voluntary armed
forces got some public attention in the 1980s, when President Jimmy
Carter decided in response to the Soviet invasion of Afghanistan that
young people should at least be registered for military service. If the
United States had to reinstate the draft, at least the cards would be cor-
rectly led. Carter and his military advisors had originally sought regis-
tration of both men and women, but Congress got cold feet about that,
and subjected only men to the registration requirement. In a 6-3 vote,
the Supreme Court decided that the male-only registration was constitu-
tional; the Court deferred to military judgment on the matter.60
Fifteen years later, because of the U.S. wars in Afghanistan and Iraq,
the all-volunteer armed forces are again garnering public attention.
There are not enough troops. As one recruiter put it with admirable
brevity: The problem is that no one wants to join.61 Front lines are
98 | Feminist Legal Theory

increasingly staffed by part-time soldiers from the Reserves and the


National Guard. Guard forces are being stretched thin enough to worry
Governors that their states will be short-staffed in the event of natural
disasters.62 The dont ask, dont tell regimethe U.S. rule that forces
gay and lesbian soldiers to be closeted or else be discharged from the
military is proving costly.63 Eligibility requirements and recruiting
practices are changing: the Pentagon is considering older recruits; Con-
gress has involved the Peace Corps for the rst time in military matters;
and recruiters are encouraged to bend the rules ignoring criminal
records, xing medical reports, even achieving the application of a man
just released from psychiatric commitment for having been a danger to
himself and others.64 The ofcial story is that the United States will not
reinstitute the draft; ofcers closer to the realities of recruitment believe
that some sort of conscription must be considered.65 In response to
these difculties, the armed forces are becoming increasingly privatized,
a strategy that drives up costs and drives down accountability.66
In all of this mess, the issue of the roles of women in the military has
again surfaced. At present, women can serve in combat support units
but cannot serve in combat,67 a distinction without a difference in the
war without a discernible front in Iraq. To date, forty female soldiers
have been killed in Iraq, a number equal to the number of U.S. military
women killed in Korea, Vietnam, and the rst Gulf War combined.68
In the summer of 2005, some members of Congress wanted to restrict
female participation but backed down due to military concern about
conicting messages that might be sent to the troops. As the Army lead-
ership wrote to the House Armed Services Committee, This is not the
time to create such confusion.69
From a militaristic point of view, however, it may be more accurate
to say that now is not the time to dispel a very protable confusion. As
I wrote some years ago, a militaristic worldview requires women to
be in the military (for sound logistical reasons) but also requires that
women cannot be the military because, when you get down to it,
youve got to protect the manliness of war.70
Feminists do not agree about whether or to what extent women
should participate in the military. Some argue that because military ser-
vice entails political respect (or rather, lack of military service often
entails a political discount), women must become fully integrated into
all aspects of war-making. Others believe that the equation of military
service with credibility and respect is itself the problem. In this view,
Feminist Legal Theory | 99

acceptance of women by the military is the surest sign of cooptation.


Women must resist militarism, and should encourage everyone to resist
militarism by every available means.
These are complex economic and political matters, and a worthy
exploration of the points of view awaits another book. Most striking to
me about the debate among feminists, however, is how little there is of
it compared to other matters of public concern. Indeed, particularly
when troops are being killed abroad, even the most progressive people
become complicit in a conspiracy of silence about what militarism is
and does. This would be the truth in the otherwise tiresome allegation
that progressive people are soft on defense.71
To me, the promise of feminist legal theory resides not only in break-
ing the silence, as all antisubordination theories aim to do, but also in
focusing the psychological stakes in a relentless examination of military
realities. The debate cannot occur without discussions of masculinity
and femininity and the relationships of those concepts to violence. For
too long, those discussions have become diffused by the conventions of
abstraction and fear of being accused of male-bashing.72 Sex-neutral
terms such as domestic violence obscure the gendered nature of inti-
mate violence,73 just as patriotic sound bites obscure discussions about
militarism and the gendered nature of international violence. If anything
good can be said about the present U.S. wars in Afghanistan and Iraq
and how they deplete both U.S. credibility and genuine defense needs,
perhaps it is that these wars ensure that the debate must occur. The
politeness and abstraction of liberalism have to give way to a habit of
naming the stakes, including the psychological ones, and trying different
social strategies, including the feminist jurisprudence that I advocate.
I didnt invent the insights of feminist jurisprudence. The literature is
already rich. To me, the challenge is to sustain in daily practice the
insights already achieved. The challenge is to develop consistent meth-
ods that help to keep in focus.
6

Feminist Legal Method

A hand or something passes across the sun. Your


eyeballs slacken,
you are free for a moment. Then it comes back:
this
test of the capacity to keep in focus
this
unfair struggle with the forces of perception
Adrienne Rich

If it is true that law is a discourse about epistemology, ethics,


and politics, the next project is to inform the epistemology, ethics, and
politics of legal decision making. Chapter 4 explained why difcult legal
projects cant be informed by the rhetoric of liberalism. Chapter 5 de-
scribed a feminist way of understanding law that takes history, suffer-
ing, and context seriously. At the end of that chapter, I spoke of the
difculty in keeping feminist insights in focus.1 In this chapter, I would
like to talk more precisely and practically about how the feminist theory
I describe would actually operate. I would like to suggest eight ideas (or
steps) that inform a practical analysis of a legal problem. It will strike
some as a wrongheaded structuralist effort, but I mean only to indi-
cate recurring places in practice where confusion creeps in, where bad
habits take over, and where cases are lost.

1. Dont Get Bogged Down in Conventional Political Divisions


As I explained in chapter 4, most political controversy in the United
States occurs within a narrow eld. In my lifetime, the biggest changes
in the polity were wrought by Ronald Reagan and his pro-big-business
agenda. Those changes can be understood within the tradition of philo-
sophical liberalism. With regard to the role of the state (whether the

100
Feminist Legal Method | 101

state is conceived as a mere night watchman or as something slightly


more), those changes can be seen as tilting the balance among philo-
sophical liberals to the right, far in favor of the concentration of wealth
and against measures designed to level the playing eld. The George
W. Bush administration continues that legacy, and may end up going
well beyond it.2 The differences among the contestants costumed for
daily political battle, however, are magnied beyond their meanings.
Nobody with political clout is seriously talking about changing very
much. Redistribution of wealth is certainly happening, but toward the
already rich. Environmental protection is merely an irritation to private
property, rather than a real threat of deprivation of it. And so on. The
debates are nickel-and-dime stuff, mostly.
Dont get me wrong. Nickels and dimes matter greatly. The scope of
political theories that contest those nickels and dimes is just not very
profound, and it is a real waste of talent and energy when we let our-
selves get sucked up into that furious little vortex. The left-versus-right
spectrum is largely an artifact, and serves primarily as a smokescreen
that contributes to the forces arrayed against transformative political
coalitions.
Lawyers get comfortable being aligned with particular sides. In civil
practice, for example, it is common to identify as a defense lawyer or as
a plaintiffs lawyer. A legal community might be momentarily surprised
to hear that so-and-so is on the other side of a particular case, but it
wouldnt be the death knell for that persons reputation. Nonetheless,
when it comes to progressive coalitions, it is commonplace to hear that
a whole movement is wrongheaded, because its proponents are in bed
with some crowd supposed to be inherently hostile to the proponents
real interests.
During the porn wars of the 1980s, for example, the paradigmatic
strange bedfellows moment occurred pursuant to the allegation that
the antipornography feminists were in bed with President Reagans at-
torney general Edwin Meese, and similar conservative opponents of sex-
ual freedom.3 Today, sexual harassment law presents similar opportu-
nities for strange-bedfellow allegations. Unsurprisingly, female speakers
are in the foreground in the endless reiteration of familiar arguments
against sexual harassment laws. Some of these critics say that pro-
ponents of sexual harassment law are prudish anti-sex schoolmarms.4
Others accuse us of participating in an incoherent and misguided effort
which is a clumsy substitute for manners.5
102 | Feminist Legal Method

This is familiar territory. Obviously, just like any other category of


cases, sexual harassment cases are neither all meritorious nor all frivo-
lous. The envisioned onslaught of sexual harassment cases that threaten
the desexualization of life has not come to pass so far. Any appearance
of that onslaught will call upon the proponents of sexual harassment
law to demonstrate again what it is and is not there for. If it happens, it
will be another aspect of interpretive competition. The strange bedfel-
lows charge is a way of making innovators believe that they cant sur-
vive every next wave of that competition.
As a longtime participant in feminist debates, Im accustomed to this
sort of challenge and have learned to see challenges that would formerly
have been most threatening as the most interesting opportunities. In a
rush to distance ourselves from the morality that informs right-wing
politics, for example, feminists lose an opportunity. Andrea Dworkin
argued that right-wing women participate in moral crusades because
they perceive that it is their best protection from male violence.6 It is
vital for progressive people in all political analyses to attempt to fathom
the fears and insecurities that motivate their opponents. If we can un-
derstand and speak to those concerns, we may learn something, and
nd allies.
Strange bedfellows charges y about too often, even in arguments
with ourselves. Over the years a number of my students, both male and
female, have said things like, You know, Im not a feminist, Im actually
quite conservative, but my friend complained about her boss hitting on
her and now they are making her life miserable and it really ticks me off.
Often, such statements are accompanied by a sense of insecurity or in-
authenticity, as if one were forbidden to hold or to express seemingly con-
tradictory opinions. You are a strange bedfellow when you sleep alone.
These students opinions are contradictory only in terms of the so-
cially acceptable limits of political debate. Their discomfort signies
some possibly illuminating point that cant shine through the shame of
contradiction. They are strangled by conventional systems of thought,
systems so complete that a refutation of any part can instantly be trans-
formed into further proof of the system.
We live in an era of strange bedfellows. From the demonizing of gov-
ernments so recently on the arms-trading friends list to the sudden soli-
darity of evangelical Christians with Israel, both denitions of the issues
and formerly predictable political alignments are giving way to different
ways of understanding the present and imaging the future.
Feminist Legal Method | 103

2. Eschew Neutrality
The illusion of neutrality has been a primary topic of this book so far.
The impulse behind the principle of neutrality is a noble one. The idea
is that justice is achieved only when blind, only when the stations and
characteristics of those before the law are ignored. But there is no logi-
cal sense in this idea. A truly neutral position draws no lines nor autho-
rizes any action according to differences among situations. The law,
however, is all about drawing lines, contrasting behaviors and making
classicationsto an incredibly detailed degree.
Neutrality makes sense only when we ask, Neutral in what respect?
Neutral as compared to what? Which aspects of this situation should be
consequential, and which not? Having voiced those questions, we are
plunged neck deep into the grime of politics. Better to relinquish neu-
trality as a surrogate for justice because the ideal of neutrality obscures
more than enhances the debate. As Professor Lon Fuller said, There is
indeed no frustration greater than to be confronted by a theory which
purports merely to describe, when it not only plainly prescribes, but
owes its special prescriptive powers precisely to the fact that it disclaims
prescriptive intentions.7
As described in chapter 5, the pretense to neutrality presents special
obstacles to women and other historically disempowered groups. This is
due not just to the historic equation of rationality with maleness but
also to the colossal privilege that allows those in power genuinely to
believe they are acting neutrally. Usually the ideal of neutrality converts
someones comfortable version of experience into an objective fact.
Moreover, neutrality drains reality of history. From that comfortable
point of view, a given injustice can be converted into an isolated inci-
dent. The useful notion in what is called neutrality is that, in a given
disagreement or class of disagreements, there are some situational as-
pects that should be similarly discounted or similarly evaluated. The
ideal of neutrality, however, doesnt tell us which aspects those are.
Consider the portrayal of the world in a famous sexual harassment
case, Rabidue v. Osceola Rening Company.8 Vivenne Rabidues Title
VII claim against her former employer was based in part upon the dis-
play of pornographic materials in the workplace. The United States
Court of Appeals for the Sixth Circuit pronounced that this is a porno-
graphic world we live in, a fact merely reected in the defendants en-
virons.9 Thus was Rabidue the Bradwell v. Illinois of the twentieth
104 | Feminist Legal Method

century.10 Ms. Rabidue didnt even get a chance to show how her eco-
nomic well-being was harmed because her injury transpired against the
allegedly neutral background of the way the world is.
I see that a few features of collective life could be described as
neutral. Gravity, maybe, but not pornography. I understand why it is
tempting to characterize a practice that seems out of control as a fact of
nature, and to postulate that it affects everyone the same way. But it is
afrmatively disabling to legal analysis to describe existing social imbal-
ances as the neutral background of experience.

3. Challenge False Necessities


Most of philosophy and law is organized around a set of bottom lines,
presented as unquestionable. These false necessities are present all the
time in daily political discourse. Thus, the alleged lack of choices for
patients in anything except the existing for-prot health care system
stopped health-care reform in the 1990s. Marriage supposedly just is
the union of one man and one woman. The march of liberty requires
killing in Iraq. This sort of conversation stopper reminds me of a 1990s
TV commercial: When you say Bud, youve said it all. If you
thought you had something to add about beer selection, think again and
shut up.
When such a conversation-stopping argument is lobbed out, how-
ever, that should signal an important beginning for conversation, rather
than the end. In addition to the false necessity of objectivity or neu-
trality discussed previously, I would like to mention two other com-
monly lobbed bottom lines: the postulation of dispositive false dichot-
omies, and the slippery slope argument.

False Dichotomies
Chapters 4 and 5 were largely devoted to an explanation and critique
of false dichotomization in categories of understanding. Legal thinking,
in particular, is organized around bottom-line dichotomies: law versus
policy, public versus private realms, expert versus lay opinion, civilian
governance versus military necessitythere are lots of them. These di-
chotomies constitute laws binary logic: when a situation falls on one
Feminist Legal Method | 105

side of the line, it is actionable, or otherwise of consequence; when a sit-


uation falls on the other side of the line, it is unactionable, someone
elses business, or inconsequential.
In sexual harassment law, a salient binary is between welcome and
unwelcome sexual conduct: a plaintiff has the burden of showing that
the conduct was unwelcome. Among claims that turn on unwelcome-
ness, there is a subset where the plaintiff had a voluntary sexual rela-
tionship with the alleged harasser before the harassing began. By itself
the prior sex tells us nothing.11 How about a case where a plaintiff had
an affair with her boss, and didnt complain until after the bosss wife
found out about it and convinced the husband to re her? Compare
that to a case where a plaintiff dated a coworker for a month, then
broke up with him, then ultimately complained because in trying to get
her back he constantly came on to her at work and hassled her at home.
Being trained to look for bright-line rules, lawyers would like for
these cases to fall neatly on one or the other side of the unwelcomeness
divide. But neither of these cases is neat. In the former, just after what
turned out to be the last episode of consensual sex, the supervisor termi-
nated the relationship and plaintiffs employment because his family
disapproved. The supervisor suggested that plaintiff call his wife at
her therapists ofce and beg for her job back. Plaintiff did so, to no
avail. The court said the fruitless begging was at most, a degrading
and humiliating episode which occurred after the sex and the termina-
tion.12 In the second case, though the court held that the prior sexual
relationship did not constitute a free pass to harass the plaintiff,
it described the plaintiffs burden as showing the difference between
harassment and personal animosity.13 One could argue that using an
employee for sex and playing her off against the family is a tried-and-
true strategy of gender exploitation. One could also undertake to show
the systematic ways that women provoke animositypersonal and oth-
erwisewhen they exercise their own sexual agency.
But in unwelcomeness cases like those described above, we wouldnt
be doing anything different or more difcult from what lawyers do in
any interpretive challenge, whether it be the meaning of reasonable-
ness in a negligence case, good faith in an insurance case, or inter-
state commerce in a federalism case. If the rules and standards ex-
plained themselves, lawyers would be unnecessary. It is unhelpful to
pretend that reality is sliced up like a ham.
106 | Feminist Legal Method

Slippery Slope
Though the slippery slope argument gets trotted out in many con-
texts, it is ubiquitous in First Amendment discourse. You know how it
goes: if we allow juries to award civil damages for injuries proven to be
inicted by racial hate speech, tomorrow theyll be censoring Oprah
and packing her off to the pokey. It is crucial, however, to consider the
concentration of media ownership and the way the First Amendment
game is actually played. It doesnt often look like real censorship.14
Oprah, bless her heart, has gotten a lot of mileage out of the attempt
at censorship threatened by the cattlemen of Amarillo. Oprah Winfrey
was sued, inter alia, under the Texas False Disparagement of Perish-
able Food Products Act for negative statements about hamburger and
Bovine Spongiform Encephalopathy (otherwise known as mad cow dis-
ease) made on her television program. During the six weeks of trial,
Oprah broadcast her show from Amarillo, and America was support-
ively tuned in to Oprahs Texas adventure. The judge dismissed the pri-
mary claims on First Amendment grounds.15
A more recent demonstration of the value of censorship is the suit
brought by the Fox News Network against Al Franken and the pub-
lisher of his book Lies and the Lying Liars Who Tell Them: A Fair and
Balanced Look at the Right.16 Among other things, Fox claimed that its
trademark on the phrase fair and balanced was infringed because
consumers might be confused about the afliations among Franken,
Fox Network, Bill OReilly, and Ann Coulter.17 After a ridiculous hear-
ing, the Southern District of New York denied the preliminary injunc-
tion and Fox dropped the case. In the meantime, due in large part to the
lawsuit, Frankens book became a best seller.18
Slippery slope arguments should ag your skepticism for three rea-
sons. First, doctrinal line-holding notwithstanding, we have long been
wallowing near the bottom of some slippery slopes. As one example, in
2003 CBS got intimidated out of airing a miniseries called The Rea-
gans.19 That was a shame in that non-premium-channel-subscriber TV
viewers missed another boffo performance by Judy Davis, but it did not
exactly signal new weapons development in the culture wars.
Second, the slippery slope is often disingenuously invoked. In struc-
ture, the slippery slope argument concedes the innocuousness of regulat-
ing the instant case but posits impossibly harder cases down the road.20
For example, the popular press tried to illustrate the danger of sexual
Feminist Legal Method | 107

harassment law by reporting that in their training, some trade workers


were taught the ve-second rule, according to which male workers
ought not look at a female coworker for more than ve seconds because
it might constitute sexual harassment.21 The idea here is that sexual
harassment may be bad, but the law is too hard to apply, and we just
cant tell the difference between meritorious and nonmeritorious claims.
Id be interested to read a case holding that the sixth second of staring
made the difference, but I cant nd one.
Third, the engine of the slippery slope argument is a fear that deci-
sion makers in later cases either will not understand or will ignore the
distinctions that drafters of regulations have tried to explain.22 Sexual
harassment law is also a rich source of these fantasies. Take the hapless
victim character played by Michael Douglas in the movie Disclosure.23
The character played by Demi Moore was not nice, coming on to
Michael and making his life miserable when he refused her advances.
This fantasy leads to an equally fantastic collapse of the republic. Every
male executive across the land will begin to imagine that every woman
in his ofce is coming on to him. All these guys will sue, judges will end
up having to segregate workplaces by sex, and both heterosexuality and
the economy will come to a dead stop. Whoever follows the mainstream
presss bombardment of sexual harassment law knows that I am not
hyperbolizing their fantasies very much.
Of course, there is some slippage in every articulation of thought,
and in every legal dispute there lurks the possibility that a decision
maker will purposely skew the necessarily exible language of rules and
doctrines to wreak havoc on cherished institutions. This is familiar
argumentative terrain, but there is no necessity for such a grim view of
lawyers powers of articulation and judges capacities for discernment.
There are real slippery slopes; there are massive gray areas; but not
every case is a hard case.

4. Deconstruct the Status Quo from the Level of Knowledge


The term I use in classes that most frustrates students is epistemology.
But it isnt really that hard. As described in chapter 3, epistemology is
that branch of philosophy that investigates the origin, structure, meth-
ods, and validity of knowledge. Legal results are generated, though
sometimes very loosely, by determinations of facts. The analysis of
108 | Feminist Legal Method

what the facts are is too often taken for granted. How do we know
the facts? What does it mean to know? In a complex factual determi-
nation such as causation in toxic torts, we can see how mechanisms of
proof and habits of inference can be hijacked to serve the interests of
the powerful.
The interrogation of claims to knowledge is also at the heart of femi-
nist legal method. Because existing social arrangements are expressed,
recapitulated, and reinforced by claims to knowledge, the feminist
method is concrete. It emerged from womens accounts of their ex-
periences of oppression. Though no one seriously asserts that law is
separate from experience,24 the feminist claim to knowledge of real
women and actual oppression has been treated as controversial.
Granted, no one gets to decide what reality ultimately is; no one can
nally describe the furniture of the universe. Lawyers and law really
are on the surfboard of innite regress, however, if we say that moun-
tainous evidence of oppressions isnt worthy of evaluation and possi-
ble redress. The key is to question what counts as knowledge. What
appears true, is even accepted as true according to the rules of evi-
dence, sometimes requires deeper interrogation. And that cannot be
done through invocation of pseudoobjectivity but only through histori-
cal contextualization.
When in legal discourse we deconstruct from the level of knowledge,
we nd that the facts are often open to multiple interpretations. And
when varying factual accounts are alleged, no one has to be lying.
Divergent factual accounts may make perfect sense within their own
sets of cultural determinants. Professor MacKinnon illustrated this in
the context of rape prosecutions where the defendant claims that the
sex was consensual. In these cases, MacKinnon asks, [I]s a woman
raped but not by a rapist?25 To the woman, the action was a violation
and an injury. To the man, it was sex. His belief may even be reasonable
in this society where sex is largely what women are for, and therefore
can seldom be an injury, and where men are encouraged not to have to
know what women want. Many women, too, have a powerful internal
censor when it comes to registering or expressing our own desires.26
The law needs a more dynamic conception of reality and a more
sophisticated epistemology than that allowed by the assumption that
there is one objective truth of the matter. To allow that there are multi-
ple realities is not to deny the possibility of agreement or progress or
even what contextually serves as truth. Rather, this approach whenever
Feminist Legal Method | 109

possible remains content with multiplicity as an end in itself27 and


otherwise engages in making increasingly complex adjustments to
novel stimulation.28 Individual dignity is a goal worth pursuing. Seri-
ous pursuit of it requires coherent experiences of group membership,
and that requires rearrangement of the institutional mechanisms of
knowledge. Questions of knowledge cannot always be answered by bur-
dens of proof or rules of evidence. Some questions of knowledge also
require the investigation of relative epistemological privilege. This leads
to the next step in my list. When two or more good-faith accounts in-
form a dispute, whose reality shall prevail?

5. Look to the Bottom


Professor Mari Matsuda suggested the phrase looking to the bottom
as part of an improved jurisprudential method.29 The bottom does
not refer to the merit or capacity of any actor but to the situation of an
actor among the usually obvious structures of social hierarchy. Looking
to the bottom requires a painstaking historical, contextual analysis of
whose subjectivity has been relatively unfettered and whose has been
systematically constrained. Looking to the bottom includes at least
three historical, political, and moral judgments. First, it recognizes that
some groups and group members have had epistemological privilege,
including the power to dene, appropriate, and control the realities of
others. Second, looking to the bottom incorporates the moral principle
that at some point, it is just that members of that group relinquish their
epistemological privilege in favor of the point of view of the theretofore
epistemologically unprivileged. Third is the proposition that it is appro-
priate for the law to undertake this epistemological redistribution.
Looking to the bottom is anathema to mainstream liberal jurispru-
dence because it brings a big dose of purposive interpretation of rules
and allegations, so leads yet again to accusations of subjective decision
making. I have tried throughout this book to show the dead-endedness
of the subject/object divide, and the need to get beyond it in order for
law to serve as a useful social instrument. Whatever features you would
include in the rule of law, I would include the promotion of equality as
the basic aim, as the feature without which law is largely pointless. And
a signal feature of inequality is in the maldistribution of the power to
label a perception as truth. Thus, a legal system committed to equality
110 | Feminist Legal Method

must have the ability to evaluate relative truth-labeling powers. This is


an example of what progressives mean by referring to systematic in-
equalities. Being able to undertake this sort of analysis is what makes
legal guarantees more than trivial.
Im condent that we can identify the nonprivileged point of view in
a given case. When the law must choose among realities, the principle
of equality requires that we look to see whose dignity is most at stake,
whose point of view has historically been silenced and is in danger of
being silenced again,30 and that, in the ordinary case, we choose that
point of view as our interpretation. That is why, for example, the un-
welcomeness of the conduct in all sexual harassment cases, and the
severity and pervasiveness of the conduct in hostile environment cases is
measured from the point of view of the harassed, not the harasser.
The method of looking to the bottom does not refer simply to con-
icts in evidence. It can help as well to identify kinds of subordination,
to appreciate the harms arising from varieties of subordination, and to
direct the interpretation of rules to address those subordinations and
those harms. Perhaps most famously in litigation and academic litera-
ture are the problems that have arisen when women of color have sought
to bring claims as women of color. For a long time after the civil rights
achievements of the 1960s, most courts were hostile to those claims.
One court accused women of color of attempting to create a sort of
super remedy,31 seeking greater standing than that enjoyed by other lit-
igants. Another envisioned an onslaught of combination claims, which
it characterized as a many-headed Hydra.32 Those courts embraced
mechanical resolutions of plaintiffs claims, placing some items of evi-
dence into the racial pile, some into the sexual pile, and pretending that
the piles had nothing to do with each other. In those cases, not only were
women of color often left with no remedy but their experiences of dis-
crimination were distorted, articially parsed, and rendered invisible.
The courts are slowly coming around on this. In the sexual harass-
ment context, a turning point was Hicks v. Gates Rubber Company,33 a
case brought by a black female plaintiff. In 1987, the United States
Court of Appeals for the Tenth Circuit decided that the trial court could
aggregate evidence of racial hostility with evidence of sexual behavior in
determining the pervasiveness of the alleged harassment. The Hicks
court did not comprehensively address the historical interdependence of
sex-based racism and race-based sexism by any means,34 but did turn
on a tiny light bulb for other courts. Eventually, the courts began to
Feminist Legal Method | 111

understand that what happens to women of color is not mere combi-


nation discrimination but synergistic discrimination. For example, in
Lam v. University of Hawaii, the Ninth Circuit Court of Appeals ruled
in favor of a Vietnamese woman in a law school hiring case, reversing
the district courts grant of summary judgment to the university in part
because it had improperly separated the plaintiffs sex discrimination
claim from her race discrimination claim. [W]here two bases for dis-
crimination exist, they cannot be neatly reduced to distinct compo-
nents. . . . Rather than aiding the decisional process, the attempt to
bisect a persons identity at the intersection of race and gender often dis-
torts or ignores the particular nature of their experiences. In support
of this reasoning, the Ninth Circuit cited articles by Professor Kimberl
Crenshaw and Professor Judith Winston.35 I hope to see more of that.
As always, I dont want to paint a happy face on this relatively posi-
tive turn. Courts are just beginning to grasp intersectionality and the
ways that the method of looking to the bottom can work. In Hicks, the
intersectionality provisionally being grasped, the plaintiff was not able
to prove her case after remand for reasons that were all too familiar.
Her credibility was impugned, the alleged harassment got characterized
as just bad manners, and the potentially actionable conduct got trans-
formed into isolated incidents.36 Perhaps the best that can be said about
Hicks is that consciousness was raised and then fell over again. But it
and cases like it are conrming that the steps I outline are viable moves
in legal judgment.

6. Find the Best Answer for Now


Finding the best answer for now means to generate as many options as
possible about how to deal with a situation. Then, based on informa-
tion learned from the prior steps, choose the best option. The crucial
idea of this step is that any option chosen can be provisional. Solutions
once embraced can cease to be useful or can be coopted by others for
bad ends. Therefore, this step requires constant vigilance about when
the best answer for now becomes a bad answer for the future.
Sometimes, empirical and political conditions mandate the best an-
swer for now. Abortion is the best example. Anti-choice forces have
popularized the phrase abortion on demand, as if women, left to our
own murderous devices, would become pregnant just for the fun of
112 | Feminist Legal Method

increasing the abortion rate. Contrary to this implication, no one de-


sires to have an abortion as an end in itself. Rather, abortion is a neces-
sary interim option pending the changes that would dramatically de-
crease the need for abortions: womens control of sexual access to their
bodies, equal participation in child care, economic parity between the
sexes, and meaningful access to health care. Abortion is a necessary
option for now, and feminists should portray it as such. Honesty is the
best strategic policy.
Often, the best answer for now strategy entails the careful use of
stereotypes. Legal liberalism tends to say that stereotypes are always
bad, without acknowledging its own extensive use of them.37 As dis-
cussed in chapter 5, however, stereotypes can sometimes be useful.
Some stereotypes are true, if only temporarily; some stereotypes de-
scribe group characteristics that tend to be true, if only statistically. The
obstacle to the proper use of stereotypes is the circularity that emerges
when the law tries to curtail activities that produced the stereotypes in
the rst place. When, for example, proponents of abortion struggle to
keep abortion available to teenagers, we reinforce the stereotype that
teenaged women are not sexually self-possessed. Because of existing
social arrangements, however, it is often true that young women are not
in control but, rather, are buffeted by a swarm of contradictions ema-
nating from moral commands, sex education curricula, images of popu-
lar culture, and the demands of their male peers. It does not hurt those
young women worse to describe the social facts. Abortion is an interim
remedy for pregnant teenagers, while we all work on the social arrange-
ments that put them in the position of having unwanted pregnancies in
the rst place.
The best answer for now strategy requires the same historical thor-
oughness and self-trust that I mentioned in the discussion of looking to
the bottom. It is critical in all cases to discern the origins of stereotypes,
and to use extra care when dealing with new, very sweeping, or truly
self-replicating ones. As lawyers become comfortable with feminist legal
theory, they will come to trust themselves with those discussions.

7. Practice Solidarity
Solidarity means other-directedness on different levels. At a minimum,
solidarity means our thinking through, as professionals and as activists,
Feminist Legal Method | 113

how legal decisions affect other people. It is too easy in the practice of
law, even while engaged in the representation of clients worthy causes,
to make bad law that will do harm down the road.
The storm around same-sex marriage illustrates the problem. I am
among many feminist lawyers who believe that the devotion of so much
time and so many resources to the goal of marriage was a mistake for
many reasons. If a few lawyers and clients had not committed us to the
goal of marriage a decade or so ago,38 who knows what divisions might
have been avoided or minimized? Who knows what other legal pro-
tections might have been achieved? It stuck in my craw that, on the
same day that the U.S. Senate passed the Defense of Marriage Act, the
Employment Non-Discrimination Act, which would have prevented
employment discrimination on the basis of sexual orientation, failed
to pass by one vote.39 Now the marriage advocates are admitting that
straight citizens needed to get to know us better before we laid the mar-
riage trip on them. What better way to get to know us than around the
watercooler in workplaces where we neednt fear disclosure of our sex-
ual orientations?
Actually, Im done being cranky about the marriage deal. I know that
same-sex couples will be guaranteed the right to marry, if not in my life-
time, then soon. Im glad I wont have to litigate the cases or write
much more about it. I just wish that the original lawyers and plaintiffs
had thought the thing through more carefully, regarding what resources
would be consumed and whose interests might actually be harmed,
before the rest of us were dragged into their agenda. Lots of people who
have no interest in the marriage goal did back it. Ive given lots of
speeches and interviews, trying to explain the constitutional context,
because solidarity is more important to me than my disagreement with
the agenda.
Thinking these through in the way I advocate is a big challenge be-
cause it requires understanding the connections between your own life
and the lives of other people. It requires seeing how you have beneted
from privilege, including by never having to notice it before. It requires
understanding that group identities and characteristics and histories can
be nodes in systems of oppressionwhether or not consciously perpe-
tratedrather than falling into the habit of seeing injustices as iso-
lated incidents.40 It requires uncompromising study of how our lives
and well-being are tied together, and requires resisting any reform that
implicitly reincorporates systems of hierarchy.
114 | Feminist Legal Method

On another level, solidarity means trying unfamiliar strategies in-


formed by unfamiliar voices. Anybody can think up a million reasons,
for example, that the foundations of the republic would crumble if a
pornography civil rights ordinance41 were put into effect. But really,
how do we know that? How do we know that everyones quality of life,
and the free marketplace of ideas itself, wouldnt be enriched? It is pos-
sible that pornography regulation would cut into the vicious cycle of
gender hierarchy. The social construction of gender could change, and
that would be to everyones benet.
Finally, and most difcult for us verbal types, I believe that at some
points, solidarity requires privileged voices to back off, give up the oor
to different perspectives, and see if somebody else can do a better job.

8. Keep the Law in Proper Perspective


Being a lawyer sometimes leaves one feeling that the only choices are
nihilism or conformity to the dreary, overcautious status quo. In my
experience, that stuckness is critical to the maintenance of laws self-
importance, and is fueled by a weird legal pathology.42 As a partial
remedy for this syndrome, keep in mind that legal decisions are mere
snapshots of ongoing social processes.
Lawyers have learned to view a legal dispute as the beginning and
end of a controversy. But that is usually not true. It is a mistake, for
example, to imagine abortion as an abstract constitutional conict.
Rather, the constitutional controversy is incidental to the social arrange-
ments that produce unwanted pregnancies. Relatedly, feminist lawyers
have learned the hard way that merely winning abortion cases is not
nearly enough. Even before the recent storm about Supreme Court
appointments, the right to abortion was a mere abstraction for most
women.43 If the federal right goes away, the matter will move back to
the states and the streets. I suspect that feminists like me havent yet had
the opportunity to appreciate exactly what sort of snapshot Roe v.
Wade was. This is one of those situations where I suspect Ill tire politi-
cal muscles that I didnt know I had. Even the work done in losing liti-
gation is important. Those snapshots we took, and the preparation that
went into them, are invaluable educational and organizational items.
It all contributes to changes in consciousness rather than mere changes
in rules.
Feminist Legal Method | 115

In developing the eight methodological steps contained in this chap-


ter, I want to give further texture to the MacKinnon equality standard
endorsed in chapter 5, but I also want to go beyond the boundaries of
what lawyers usually understand as equality law. I want to suggest that
the steps I describe could benet legal analysis in all manner of legal dis-
putes, not just those illustrative womens issues that Ive primarily
relied upon in this chapter.
Let us revisit, for example, the problem of causation in toxic torts
that was the primary focus of chapter 3. Many of the controversies are
de facto womens issues because an extraordinary number of the con-
tentious litigations have involved products that are used exclusively or
disproportionately by women. But lets talk about a toxic tort issue that
is nominally sex-neutral, say, the increase in violence to self and others
allegedly caused by commonly prescribed antidepressants. In brief form,
the analysis might go like this.

Avoiding conventional divisions. The contest in the antidepressant cases


is not between a few whiny plaintiffs (with their greedy lawyers) and
the heroic scientists (employed by pharmaceutical companies) whose
sometimes risky innovations undoubtedly improve lives. The plaintiffs
are not in bed with enemies of science, such as school boards who
insist that intelligent design be taught alongside the theory of evo-
lution.

Eschewing neutrality. Remember Heisenberg: the observer changes the


observed system. Science is not a pristinely neutral endeavor. The pres-
ent sine qua non in toxic tort cases, epidemiology, is also a purposive
rather than a neutral enterprise. It is concerned as much with how to
model populations and diseases as it is with nding nal answers about
the relationships between populations and diseases. It is a science in
search of other scientic paths, rather than a description of the furniture
of the universe. In any case, the fact that a background population
commits violent acts doesnt make it OK that the plaintiff population
commits those acts. It isnt OK for the background population either.
The law is another purposive enterprise that should design its relation-
ship to science in accord with its own conscious aims. When social
practices and institutions, including pharmaceutical companies, partici-
pate in causing violence, the law gets to regulate those practices and
institutions.
116 | Feminist Legal Method

Challenging false necessities. Courts dont have to choose between de-


ciding on one hand that an antidepressant was the cause of a plaintiffs
harms (what Aristotle might call the nal cause) and on the other
hand that an antidepressant was unrelated to those injuries. Courts
decide only legal cause, a term that can have whatever meanings the law
needs to ascribe to it. In determining the criteria for legal cause, courts
also get to decide what constitutes expert opinion, and which experts
testimonies are more germane than the testimonies of other experts. The
slippery slope argument is usually a red herring in these cases. If a jury
decides that a specic injury was caused by a specic antidepressant, it
means neither that a given manufacturer will be liable for all injuries
allegedly associated with its antidepressant nor that all manufacturers
will always be held liable for any injuries that can be merely statistically
associated with their products.

Deconstructing from the level of knowledge. This is the real focus of


chapter 3: what counts as knowledge and who gets to decide the criteria
for deciding what counts as knowledge? Pharmaceutical cases are spe-
cial cases, among other reasons because drugs are marketed only after
supposed scrutiny by the federal government. In reality, the manufactur-
ers conduct their own studies, and usually disclose to the government
(and to shareholders and consumers) only positive results. Antidepres-
sants are a textbook problem in that regard.44 Importantly, the studies
that exist about protable, still-patented pharmaceuticals are clinical
studies, that is, observations based upon populations prospectively iden-
tied and compared. Epidemiological studies dont exist for most phar-
maceutical drugs still on the market; by denition, epidemiology con-
cerns postexposure effects of a toxin in more general populations, and
the studies take time. The more time, the more reliable the study. None-
theless, plaintiffs in antidepressant cases usually cannot even get to a
jury because they cannot present epidemiological evidence that by den-
ition could not exist or could not be reliable.45 Here is the simple
methodological question: who should decide the signicance of the
nonexistent or incomplete epidemiological evidence, the non-scienti-
cally-trained judge or the non-scientically-trained jury?

Looking to the bottom. The reason for the development of product lia-
bility law in the rst place was to shorten the immense distance between
Feminist Legal Method | 117

twentieth-century consumers and the manufacturers of the products


that can inict mass injuries.46 Talk about epistemological privilege!
Consumers cant test products before they go on the market (accompa-
nied by astonishing advertising budgets), and manufacturers pretty
much disclose what they want to disclose. Particularly when manufac-
turers did know or should have known about dangers and didnt dis-
close them to consumers in a meaningful way, whose version of the
facts should be given most attention?

Finding the best answer for now. There is lots of dispute about whether
judgments for damages deter the design, manufacture, and marketing of
dangerous products in a general and consistent way. But is that the stan-
dard? There are a number of ridiculously dangerous products that are
now off the market because of the efforts of injured plaintiffs and their
lawyers, products that wouldnt have been removed by legislative or
administrative or market-regulatory means. Particularly in the United
States (where there is no universal medical coverage nor any consistent
mission for regulatory agencies), we wont soon agree upon a nal and
comprehensive answer about the role of lawsuits in the service of the
goal of consumer safety.
Why not make some provisional changes in standards and doctrines?
Judges (sometimes with the help of legislators) vary tort doctrines all
the time. It is commonplace to tinker with burdens of proof, especially
by the creation of burden-shifting doctrines on questions of causation.47
Remedies are another rich source of provisional solutions. All plaintiffs
recoveries are odds-based in several senses, and the recent develop-
ment of odds-based partial recoveries48 could be expanded. And what
would be so bad about provisional adoption of the proposals, for exam-
ple, that create presumptions of liability (or presumptions of proof on
the causal element) when manufacturers are shown simply to have
failed adequately to test their products, intentionally or not?49 Excep-
tions could still be made for experimental lifesaving products, and law-
makers could change those provisional rules when they appear not to
work anymore.

Practicing solidarity. This admonition is somewhat complex in the toxic


tort context. The defense bar, defense experts, and the insurance compa-
nies that nance them are virtual monuments to the success of coordi-
118 | Feminist Legal Method

nation of efforts. Plaintiffs and their lawyers are becoming more orga-
nized, as well. Solidarity, however, connotes more than coordination
with those on your own side. Solidarity probably requires that plain-
tiffs lawyers refrain from bringing frivolous suits, and that defense
lawyers refrain from defending dangerous products. But these are mere
platitudes without, rst, a norm of disclosure about tests and risks, and
second, an understanding of the life cycle of tort litigation. Every
lawsuit is a snapshot in a long story, including years of testing (or not
testing) products, marketing products, discovering injuries from prod-
ucts, and testing the judicial waters in the rst cases involving such
products before an equilibrium emerges among judgments, settlements,
and product withdrawal.50 The best that could be hoped for at this
stage, perhaps, is agreement that such stories are the most inefcient
possible way of regulating dangerous products. Solidarity on that con-
clusion could lead to a different regime of premarket testing, regulatory
streamlining, and normalization of litigation longevity.

Keeping the law in proper perspective. In the United States, we have a


particularly odd view of the relationship between law and health care.
Health care industries are largely deregulated on the front end, and law
steps in only after injuries have occurred through the ling of malprac-
tice and products liability suits. This setup doesnt deserve the name
social policy. We give the common law (and lawyers and judges and
insurance companies) too much power. By regulation through lawsuit,
we get problems like the practice of defensive medicine (driving up
health care costs) and huge inequities in the distribution of damages for
similar injuries from malpractice and toxic treatments. Among all social
problems, perhaps the problems of health care cry loudest for reevalua-
tion of the role of law. In my view, the righteous feminist position is
to argue strenuously for getting over the existing litigation system and
trying different approaches. At the same time, keeping the law in per-
spective argues for supporting the plaintiffs who take the risks of bring-
ing suit. That is, one proper perspective is to celebrate what litigants
achieve in calibrating social norms.
I invite the reader to look to her own areas of legal interest as tests of
the eight methodical steps Ive described. As the exegesis on the applica-
tion of those steps to toxic torts indicates, perhaps my steps are just
ways of organizing familiar arguments. But I believe the reader will nd
Feminist Legal Method | 119

that those steps point to places where such arguments consistently pre-
sent themselves as serious obstacles. My point is to show that these con-
sistent possible pitfalls neednt always nab us. Lawyers can decide to go
beyond them, and can do so with vigilance directed toward elimination
of bad habits and delusional choices.
7

False Consciousness

Everyone in this room is wearing a uniform.


Frank Zappa

In previous chapters, Ive repeatedly come back to the con-


cept of choice. It is a fundamental tenet of legal liberalismthat the
individual is the only meaningful unit of social measurement and that
the individual captains her own ship, makes her own bed, and is the
self-determining protagonist in a number of nonmetaphorical endeavors
as well. Choice is also an intractable problem in philosophy. There is no
way that our human minds could ever know for sure whether what we
experience as choice actually determines any events in our own lives or
elsewhere. We could be mere cogs in an eternal universal unalterable
plan. Or maybe what we understand as our choices have some partial
effectualitymaybe nature and nurture and physics and the gods and
human dignity are all ingredients in a cosmic stew. We just cant know
for sure.
Ive also referred the reader to how the concept of choice has particu-
lar poignancy for women and other others. This chapter is a medita-
tion upon the matter of individual choice, and specically upon how
feminist lawyers have dealt and not dealt with the concept. Though my
discussion goes well beyond the specic term, Ive called this chapter
false consciousness because the term signiesnot always precisely
a continuing source of feminist inghting and paralysis. False con-
sciousness is both a philosophical term of art and a political epithet, at
least these days. Along with the charge that a feminist is engaging in
essentialism, the allegation that a feminist has accused another of
false consciousness has long been both a conversation stopper and a
thought stopper. That happened when any of us began to think beyond
liberalism. If individual perception and evaluation arent the measure

120
False Consciousness | 121

of all things, if political success isnt just the provision of equal individ-
ual opportunity, what standards should feminism provide to replace
those? People who grew up in the Cold War era, perhaps particularly,
were hypersensitized to threats of thought-policing by others claim-
ing to have found a better political path.
The idea of false consciousness bounces around in lots of contexts,
and at the least seems to mean that someone is missing something im-
portant or that someone is accusing someone else of missing something
important. Before getting to the heritage and meanings of the idea, lets
consider three situations where the matter of false consciousness might
arise or has arisen.
First, in London on the morning of November 4, 2004, the Daily
Mirror ran a front-page picture of the just reelected President George W.
Bush with the headline How Can 59,054,087 People Be So DUMB?1
Second, President Bush has appointed Gerald Reynolds as the new head
of the United States Commission on Civil Rights. Though an African
American, Mr. Reynolds says that he has never clocked race discrimina-
tion, at least as practiced against himself: I just assume somewhere in
my life some knucklehead has looked at me and my brown self and said
that they have given me less or denied me an opportunity. But the bot-
tom line is, and my wife will attest to this, I am so insensitive that I
probably didnt notice.2
The third example is a comment from Professor Joan Williams, who
in a symposium about the work of caring for others (that most funda-
mental and usually uncompensated work done most often by women),
stated that the only rhetoric dominance feminism offers for under-
standing choice . . . is false consciousness. Williams says that an
accusation of false consciousness is infuriatingly condescending, and
asks, [C]an you imagine a trade book that actually inspired women
to think of themselves as responding to social mandates rather than
making authentic choices by telling them they suffered from false con-
sciousness?3
I understand that these examples are different in many ways but
offer them to introduce a spectrum of talking about the misconceptions
of others. False consciousness could refer to a wide range of re-
sponses to the assertion of an opinion, from I disagree with you, and
believe that with more information or experience you might change
your mind, to you are a total puppet and I am both smarter than and
morally superior to you.
122 | False Consciousness

The rst example is straightforward. Of course, the British press has


always enjoyed hyperbole, and it is no secret that Europe is fed up with
the United States. I dont think, however, that anyone in Europe actually
believes that a majority of U.S. voters have low intelligence. Rather, the
November 4 edition of the Mirror wonders why the voters failed to use
that intelligence, and acted instead against what the editors regard as
the self-evident interests of the citizens of the United States and every-
one else in the world.
The second example is more complex. In quoting Mr. Reynolds, the
New York Times didnt bother saying that this guy doesnt get it.
It instead implied that perhaps the top civil rights ofcial should be
sensitive to racism, at least sensitive enough to notice it. In addition,
the report about Mr. Reynolds invites us to consider the motives of
the Bush administration. This Presidents father, President George H. W.
Bush, was thought by some to have acted cynically or delusionally in
appointing Clarence Thomasan African-American man vehemently
opposed to afrmative actionto the Supreme Court, the institution
that would decide the fate of such policies. Similarly, some might think
that Bush Junior specically wanted to ll a racial-policy-making posi-
tion with an African-American man who believes that racism is all in
our heads.
But who is cynical? Who is delusional? Are Justice Thomass and Mr.
Reynoldss beliefs genuine? Are those beliefs wrong?4 Did the Bush
administrations think their appointees beliefs were genuine, and know-
ing that such beliefs were wrong, act to exploit those beliefs to keep
people of color in their place? Or did the Bush administrations believe
their appointees beliefs, that racists are basically knuckleheads? Are
they then all wrong? Or, as the Bush administrations would argue,
are the liberals completely deluded about the benets of afrmative
action and racial awareness? Moreover, do the liberals know they are
wrong, and do they argue for afrmative action out of abject cynicism?
Are they playing the rest of us for knuckleheads? You see where this is
going. Such questions are not just about policy; they are also about pro-
bity and paranoia.
The third example is complex in a different way, and exemplies
what has made false consciousness such an issue among feminists.
Professor Joan Williamss statement accuses an unnamed someone (or
someones) of accusing an unnamed someone else (or someones else) of
suffering from false consciousness. Given that Joan Williams is a re-
False Consciousness | 123

spected feminist legal scholar, Im disturbed by her treatment of the


problem of delusion. To begin with, this particular quote ignores a fab-
ulous phase of feminist history. She says it is unimaginable that it could
be so, yet an actual best-selling feminist trade book about false con-
sciousness was Kate Milletts Sexual Politics,5 published in 1970, one
of the great political treatises of the twentieth century. Among Milletts
central insights was how sex skews the perceptions and interests of both
men and women. Millett was among the rst to apply the notion of
ideology to sex. And her book, exposing as it did how deluded we
could be, did nothing if not inspire. A generation of people who would
devote their lives to liberatory causes were changed by Milletts analysis.
In 1970, my mother gave that book not only to me (and a perfect high
school graduation present it was) but to several of the people with
whom she was working, trying to navigate through layers of denial, vio-
lence, and weirdness in postdesegregation North Carolina.
What is more important, Professor Williamss comments assume that
there is a single understanding of choice offered by dominance femi-
nism (if you dont agree with us you are deluded) and that there is an
opposite thing called authentic choices. I cannot nd such clarity in a
distinction between indoctrination and personal opinion. As explained
in chapter 4, the liberal notion of authentic individual choice itself
stands in need of radical interrogation.6 Of course, there is nothing
more irritating than having an oash person get in your face and say,
You know whats wrong with you? But most exchanges are not like
that. And there is more at stake than bruised feelings.
Professor Williams does not provide any citation for the association
between false consciousness and dominance feminism, but it is fairly
clear from the context that she is accusing Professor MacKinnon of
accusing other feminists of false consciousness. It is commonplace to do
so.7 A careful study of MacKinnons work, however, reveals that not
only has she never accused anyone of false consciousness but that she
rejects the concept. Here is part of what MacKinnon actually said on
the subject:

Treating some womens views as merely wrong, because they are uncon-
scious conditioned reections of oppression and thus complicitous in it,
posits objective ground. . . . The false consciousness approach begs
the question by taking womens self-reections as evidence of their
stake in their oppression, when the women whose self-reections are at
124 | False Consciousness

issue are questioning whether their condition is oppressed at all. The


subjectivist approach proceeds as if women were free, or at least had
considerable latitude to make or choose the meanings of their situa-
tion. . . . The way in which the subject/object split undermines the fem-
inist project here is that the false consciousness approach cannot
explain experience as it is experienced by those who experience it, and
its alternative can only reiterate the terms of that experience. . . . Nei-
ther the transcendence of liberalism nor the determination of material-
ism works for women. . . . Womens situation offers no outside to stand
on or gaze at, no inside to escape to, too much urgency to wait, no
place else to go, and nothing to use but the twisted tools that have been
shoved down our throats. . . . If feminism is revolutionary, this is why.8

MacKinnon has been so important to social movements over the last


quarter century that we owe it both to her and to the possibility of
progress to give more careful consideration than is usually given to the
concept of false consciousness.
The actual term false consciousness was coined by Karl Marxs
intellectual partner, Friedrich Engels.9 Most political theorists dene
false consciousness as a belief that is false, that is both produced by
and reinforcing of an oppressive social system, and that conceals and
acts against the believers real interests.
The denition is a mouthful on many grounds, but note that many
neo-Marxist and non-Marxist theories posit a notion of ideology or
hegemony that includes a concept of misperception or misjudgment
akin to false consciousness. Walter Lippmann, the Dean of American
Journalism, wrote early in the twentieth century about the manufac-
ture of consent, which he considered a positive part of democratic gov-
ernance, a notion enthusiastically taken up by the advertising, public
relations, and lobbying industries.10 A recent best-selling bookWhats
the Matter with Kansas?is an investigation of how the good people of
that state have been persuaded consistently to vote against their own
economic well-being.11
The term ideology is used variously in present debates but does
not usually refer to a happy part of self-governance. Ideology means a
collection of beliefs and values held by an individual or by a group on
grounds other than what, upon more careful deliberation, people would
usually regard as good evidence. Ideology complements physical force
as the primary instrument for the maintenance of social order. The
False Consciousness | 125

dominant ideas in an epoch reect the experience and serve the interests
of the dominant class. Those can be economic interests, gender inter-
ests, race interests, militaristic interests, nationalistic interests, or what
have you, and can be in competition. When it is working well,12 ideol-
ogy allows the powerful to believe that they deserve to be in power, and
induces those not in power to entertain mistaken beliefs about how
society works and what is good for them. Ideology induces those not in
power to engage in self-policing. Ideology makes the existing order
seem natural, inevitable, and/or just, at least to the degrees necessary to
quell serious challenges to it.13
In the literature about ideology, most familiar to contemporary schol-
ars is the notion of hegemony, developed by the authors associated
with the Institute for Social Research in Frankfurt beginning in the
1930s. Their analysis sought to unmask the discrepancies between the
proclaimed goals of the powerful and the means by which they actually
operate. Ideology is a communicative structure systematically distorted
by power relations.14 Antonio Gramsci famously dened cultural hege-
mony as the spontaneous consent given by the great masses of the
population to the general direction imposed on social life by the domi-
nant fundamental group.15 This is a complex process, what Gramsci
described as divided consciousness on the part of the individual.16
Hegemony rules primarily through legitimation rather than force. It
thrives on an aura of moral authority established through institutions
and symbols instantiating mainstream values, norms, perceptions,
sentiments, and prejudices. These mainstream items dene the existing
distribution of all versions of power, and also dene the permissible
range of disagreement about those distributions. The hegemonic work is
arduous, but the payoff is huge. The regime produces its own image of
authority, a form of legitimation that rests on nothing outside itself and
is reproposed ceaselessly by developing its own languages of self-valida-
tion.17 Thats another mouthful, but think of a simple example: brand-
name loyalty. I remember acquiring brand-name loyalty at a very young
age, when the issue was my fathers Oldsmobile. Ive read that the aver-
age ten-year-old in the United States can identify between two hundred
and three hundred brand names. Corporations go to an enormous
amount of trouble to make this so, but we help out a lot by wearing
corporate logos all over our bodies and paying for the privilege of doing
so. Reread the language quoted earlier in this paragraph with any Nike
ad in mind.
126 | False Consciousness

It is difcult to condense a century and a half of critical theory to


describe the mechanisms of hegemony. Still, I have to emphasize three
of those mechanisms. First, hegemony limits acceptable discourse. In
order to be admitted to debate in the noncrackpot gallery, the contes-
tants tacitly and perhaps unconsciously agree to limits that give away
the store regarding some of the most important social issues. Thus, in
questions of war and peace, the respectable contestants must assume
that the state is benevolent, reacting only to the crimes of others, and
that when it acts unwisely, it is onlyin the words of Professor Noam
Chomsky because of personal failures, naivet, the complexity of
history or an inability to comprehend the evil nature of our enemies.18
These limits of acceptable discourse mean that pointing out the gra-
tuitousness of a particular war is regarded as merely impolite, perhaps
disrespectful to the troops. Suggesting that persons in a particular ad-
ministration have made it all up, have conspired to create military con-
ict for political gain is not only uncivilized, it is getting close to
treason. Suggesting that that is what governments do is lunacy. The lim-
its of discourse mean that one cannot insist too vehemently on an
increase in the minimum wage, and cannot talk too openly about the
increasing concentration of wealth and the impoverishment that must
be imposed to achieve it, lest one be accused of engaging in class war-
fare. These limits of discourse make feminism always too shrill, too
oppositional, because respectable people do not point out the privileges
that other people actually have and how those privileges are obtained
and maintained.
A second central mechanism of hegemony involves the role of ex-
perts. Obviously, with respect to the rst mechanism described above, it
matters who is articulating the limits of acceptable discourse. When
experts, pundits, ofcials, commentators, academicsthe credentialed
and the condentare not troubled by matters outside the limits of dis-
course, why should anyone else be? Thus, in my discussion of toxic
torts in chapter 3, it is crucial to the protection of industry that the
regime of truth-making devolves from a rule of evidence that describes
what counts as expert testimony. Practicing lawyers are themselves
expert in the manipulation and presentation of expertise. It is not only
that you want your guy to have lots of letters after his name, to wear a
handsome but unpretentious suit, and to look and sound like Walter
Cronkite. There is wizardry involved in elevating his testimony to the
level of gospel, and in portraying contradictions as heresy.
False Consciousness | 127

Additionally, within a hegemonic system, experts are necessary to


create and/or maintain a perpetual crisis-consciousness; a sense of threat
to people that will cause them to accept control by others. Experts or
those designated as experts have the exposure needed to achieve that. In
their 2000 best-selling book Empire, Michael Hardt and Antonio Negri
rearticulated this insightperhaps rst articulated by Machiavelliin
ways prescient of what would follow the events of September 11, 2001.
Ever-enlarging exercises of power require the capacity to dene every
time in an exceptional way, the circumstances that demand another
exercise of power.19 There must be a proliferation of indenite crises.20
Think of the color-coded threat levels the U.S. government created
after September 11; recall how often the defense experts changed the
threat level, and on what grounds. Having just nished the Hardt and
Negri book, I couldnt help but notice that for many weeks after Sep-
tember 11, CNN advertised its 24/7 programming in advance as crisis
coverage. The Department of Homeland Security could be called the
Department of Permanent Emergency. My observations are not to mini-
mize the losses of September 11 or to communicate disrespect for the
responders. My intentions are exactly to the contrary. In my view, noth-
ing could be less respectful of the bereaved and the valiant than for
government to appropriate and manipulate their experiences. Nothing
could honor patriots more than to expose political manipulations of
them. As Professor Noam Chomsky put it back in 1984, vigilant citi-
zens need to become literate regarding the deployment of expertise.
The talking heads real job is to prevent the realization that what is
happening today is not some departure from our historical ideals and
practice, but the systematic expression of the way our institutions func-
tion. . . .21
Third, hegemony tends to diminish the opportunities for and possible
success of confrontational challenges to the powers that be. Keeping
dissent hidden is an ancient tactic that renders the dissent trivial, abnor-
mal, and disconnected from its roots. Due to the distribution of women
in society, this has particularly been the case with feminism. Because
each new feminist work or insight appears as if from nowhere, as Adri-
enne Rich put it, each contemporary feminist theorist [is] attacked or
dismissed ad feminam, as if her politics were simply an outburst of per-
sonal bitterness or rage.22
Think back to the story of the rule of law told by Justice Stephen
Breyer in the various speeches that I recounted in chapter 1. Among the
128 | False Consciousness

morals of that story seemed to be that over the last century and a half,
the aftermath of Supreme Court decisions has involved less and less vio-
lent resistance or need for military enforcement. Is this an unqualied
good, or a sign of the peoples political disempowerment? This has long
been a worry for me as a law teacher. What I teach my studentspar-
ticularly in that I teach subjects where litigation is the ordinary means
of enforcement of legal normsis how to act within a closely con-
strained system of dispute resolution. Particularly insofar as the message
is that law is the dispositive arena for every social problem, I am just
another messenger for hegemony. File your lawsuits and obey the rules.
Otherwise, resistance is futile.
Having discussed the means by which hegemony works, I do not
attribute intentionality or even a consistent mentality to institutions,
groups, or powerful individuals in society. It is still possible to be criti-
cal of whoever benets from existing arrangements but is unwilling to
investigate the ways and means of privilege. I see why the passive par-
ticipation of the privileged in false consciousness is important to main-
tain oppression. Everyone wants to think well of themselves, and that is
hard if you begin to think that your privileges are undeserved or that
youve bought them off someones back. Indeed, some believe that ig-
norance is fundamental to the way the world works. The privileged
need ignorance, at least among themselves and preferably among the
nonprivileged, in order to sustain the self-condence they need to keep
the wheels turning.23 In any case, there is always a motive for not
knowing, and/or for covering up. Why acknowledge the agonies of
prostitution, for example, when you can carry around in your mind the
consensually cheerful image of Julia Roberts in Pretty Woman,24 and
make movie studios insanely rich at the same time? Get over it and buy
some stock in the entertainment industry. Not knowing is where the
magic happens.
On the other side, of course, are the negative implications for the
dominated of recognizing false consciousness. It connotes complicity in
ones own domination, and although the words complicity and col-
laboration dont carry the same weight of damnation they did a few
decades ago, they arent very nice. Accusations that people have not
acted in good faith or that they lack the capacity to do soaccusations
that are inherent in discussions of hegemonyhave provoked notable
antipathy on the part of U.S. historians over the past quarter century.
Those scholars rightfully emphasize the vitality of subordinate cultures,
False Consciousness | 129

and all the ways that persons and groups without power nonetheless
assert themselves.25 Indeed, enormous strength in social movements
comes from celebrating the agency of its members, who haveseem-
ingly against all oddsboth recognized the mechanisms of oppression
to which they have themselves been subject and spoken with startling
clarity about them. Here is how Professor MacKinnon expressed the
problem:

Feminism afrms womens point of view, in large part, by revealing,


criticizing, and explaining its impossibility. This is not a dialectical par-
adox. It is a methodological expression of womens situation in which
the struggle for consciousness is a struggle for world: for a sexuality, a
history, a culture, a community, a form of power, an experience of the
sacred. If women had consciousness or world, sex inequality would be
harmless, or all women would be feminist. Yet women have something
of both, or there would be no such thing as feminism.26

The understanding of consciousness as struggle is the central point,


but it is the arduousness of struggle, I suppose, that puts the matter of
false consciousness near the top of the list of theoretical notions that
provoke hostility. Before getting to the psychological aspects of this, I
should note that there are at least three analytical aspects of false con-
sciousness that present difculties. These ow from my earlier denition
of false consciousness as a false belief that is produced by and reinforces
existing power arrangements in society, and that is held in spite of being
contrary to the holders own interests.
First is the implicit rationalism in an accusation of false conscious-
ness, the implied assertion that there is a true consciousness accessi-
ble to the critic against which the consciousness of the criticized can
be contrasted. This is what Professor MacKinnon was referring to in
rejecting the concept of false consciousness because it posits objec-
tive ground. The now widespread belief in the social character of
knowledge renders suspect any suggestion of objective knowledge about
other peoples interest or even ones own interests.27 At the very least,
the idea of false consciousness would seem to require the falsiability of
a given belief. That is seldom possible to do. For example, in a 2003
article instructively entitled The Triumph of Hope Over Self-Interest,
the New York Times reported that 39 percent of U.S. adults believe that
they are or will be in among the 1 percent of richest Americans.28 It
130 | False Consciousness

goes without saying that 39 percent of the population are not currently
in the top 1 percent in terms of income, but I could not show that any
of that 39 percent will never be in the top 1 percent. Far be it from me
to quash the American dream.29
Second among the analytical difculties is deciding who are the
architects and beneciaries of existing power relationships. Even on
those days when government and business and media seem most clearly
to be forming a synergistic axis of evil, the story of power is not a sim-
ple story. Tom DeLay and Wal-Mart and Rupert Murdoch are indeed
masters of the universe but are not the only ones with substantial cul-
tural inuence. Other arbiters of power and culture are parents, edu-
cators, classmates, Starbucks employees, musicians, authors, movie-
makers, sports gures, Internet bloggers, and whoever is famous for this
and the next fourteen minutes. And of course, there are multiple vari-
eties of inuence to be had, each of which waxes and wanes and self-
destructs and is reconstituted. Moreoverand this question really does
seem to obsess peoplecultural inuence need not be conscious. Im
certain that some actors set forth deviously and with complex manipu-
lations in mind. However, as noted above, privilege is of far greater
value when it is not conscious.
Third among the obvious analytical problems is identifying a per-
sons genuine interests in order to evaluate whether that person is
choosing beliefs consistent or inconsistent with those interests. This
problem plagues philosophy and social theory. Thus, all versions of util-
itarianism the theories that ground social value on achieving the
greatest good for the greatest numberfounder on the question of
what counts as a good, or as satisfaction of a preference, or what
weight should be given to each alleged benet, and so forth. Even if we
could presume to interfere in anothers interests, what interests would
we need to be talking about? Short- or long-term interests? Individual
or group-based interests? What interests can we isolate and which
should we include? Economic, psychological, communicative, techno-
logical, sexual, intellectual, political? Could it never be said that I have
a genuine interest in undermining my own interests, or at least in
thwarting my own appetites?
Intimidated by the intense subjectivity of the realm of desires,
philosophers and social scientists have sometimes looked to a calculus
of needs rather than wants, in search of rmer footing. But the same
kinds of problems present themselves. What needs are included? Can
False Consciousness | 131

we distinguish on the basis of seriousness, such as basic needs, without


which I would perish, versus superuous needs, without which I would
merely be unhappy or dissatised? And what about the Freudian dis-
tinction between latent and manifest needs? Who will decide when a
professed need is a surrogate for a real need that I cannot admit, even
to myself? And what about my needs for placebos? What about false
needs that have become a part of my identity, those gotta have it xes
or xations that make me me in my own opinion?
Herbert Marcuse said that false needs are those that people pursue
even though they detract from happiness: the needs that perpetuate toil,
aggressiveness, misery, and injustice.30 There is much about that formu-
lation that is attractive. It often seems that existing social arrangements
are misery-inducing for oppressors as well as the oppressed, and that
these arrangements entail enormous energies to maintain.31 It would be
fabulous to be able to persuade the powerful to chill out and to give up
the attributes of power for the sake of their own happiness. I just dont
expect them to call me up and ask if I know whats wrong with them.
Given the difculties in the needs/wants calculus, the most common
resolution is just to leave the identication and pursuit of interests,
wants, and needs up to each individual. I think of this as the fundamen-
tal American freedom to screw up. You just go right ahead and make
yourself miserable or whatever, so long as you dont step over very spe-
cic boundaries delineating other peoples spheres of misery. Chances
are that neither you nor anyone else will ever be able reliably to evalu-
ate the choices you are making in your life.
In any case, I am not bothered so much by the analytical issues.
These are discussions we have all the time and we carry on whatever the
setback du jour. Even if we cant establish the truth about beliefs (not
to mention desires, affections, loyalties, passions, tastes, and even iden-
tities), we subject them to critique. We might even change our own
minds and participate in other peoples changing theirs. Moreover, not
only do our desires change over time but we regularly acknowledge that
we can be mistaken about them. Almost daily, I hear myself say, This
isnt what I really wanted. I am usually talking about lunch, rather
than my career or sexual orientation. Yet, even if I were talking about a
serious subject, people would understand what I meant.
Within feminist discourse, the larger problem has been more psycho-
logical than analytical. Those who are alleged to have made charges of
false consciousness (whether they have or not), are themselves accused
132 | False Consciousness

of being arrogant, authoritarian, silencing, and elitist. Like pretty much


everything else under the sun, this set of complaints is nothing new.
Around the time of the Russian Revolution, for example, this problem
was called vanguardism. That is, if the history of workers conscious-
ness is inexorably moving toward the revolution,32 why do we need
leaders? What role can leaders legitimately play? Vladimir Lenin partic-
ularly spent much of his theoretical energy trying to justify the Bol-
shevik leadership by an educative model, whereby expertise could be
provided to the proletariat as they attempted to break free of their
enslavement.
The history of Marxism and its variations in the twentieth century
provide rich ground for any study of ideology, but the problems of ide-
ology can be generalized. The issue of hierarchy presents itself in all
manner of political movements, particularly in urging others that they
should and can realign their loyalties. It wasnt just the Bolsheviks
urging the workers to struggle against the bourgeoisie but civil rights
leaders working to empower people of color to struggle against ra-
cial oppression, nationalists encouraging colonized people to struggle
against the colonialists, and feminists urging women to struggle against
patriarchy. In all of these contexts one could ask, where do these people
get off? Do they think they are better than us? Are they claiming to
speak for us?
Every relationship of subordination and domination is different, and
one of the indicia of difference is how ideology plays out in that rela-
tionship. The political history of women is generally informed by the
distribution of women in society. Women are not their own demo-
graphic. In general, they do not live in communities or cultures that are
describable differently from the communities and cultures in which men
also live. That is true as well of some other historically disenfranchised
groups, such as those subjected to subordination because of disabilities
or because of gender orientation. The added ingredients in womens
political history are sex and the pedestal. The Anglo-European tradi-
tion, especially in recent centuries and especially among more afuent
classes, has expressed the separate spheres ideology. In this version of
supposedly natural arrangements, women and men inhabited different
worlds, the womans world having no history-making authority. The
inhabitants of that world garnered esteem by their conformity to the
closest degree possible to the cult of true womanhood. In this regime,
womens absence from authority was taken as nature itself. Putting
False Consciousness | 133

women on a false pedestal made it less necessary to deliver express mes-


sages of inferiority, at least to aspiring and already conforming females.
Throw into this mix the elaborate structures of sexual objectication
and sexual pleasure. Throw in the whole feminist-postmodernist com-
mentary on protecting desire, the erotic, and the imaginary. Throw in
the pleasures and approbation attendant to having and rearing children.
Many women resisted, many went crazy, but most went along with the
program and I do not criticize them for that. Yet a great deal of feminist
analysis has been devoted to showing how this whole regime was a
setup for the women involved. The more an individual woman suc-
ceeded at femininity, the less she succeeded as a self-determining human
being.
It is an old debate. Beginning with de Beauvoirs admonition that
one is not born, but made, a woman, many feminists have argued
that femininity is training for subordination, that the very identity as
woman is disempowering.33 Particularly, the critique has centered
around male identication, the set of forces that encourage women to
surrender themselves to the identities of their fathers, husbands, or sons.
Is it false consciousness? Some feminists have thought so, in that the
males power and prestigeor even relative sense of well-beingby
denition do not transfer to the female.34 Other feminists have sharply
rejected such an analysis as offensively patronizing, as mirroring Lenin-
ist vanguardism, and as denying the complexity of all consciousness,
whether raised or unraised.35
The debate has been at times debilitating for feminist efforts. I see
that there is a lot at stake, including the joys of family life, the release
of inhibitions on erotic experience, and the metaphoric of gender.36
I would note, though, that in a sense all group identications are
false identications. Ive mentioned several times that professional-
ism seems to be a cover, so that lawyers dont have to think very
deeply about what is going on in the multitudinously different worlds in
which law has effects. Professionalism has also been a trap for teachers
(particularly those in elementary and secondary education), who get
meager compensation and have little power in ordering educational sys-
tems. I worry particularly about my friends who are nurses; the call of
professionalism is incredibly strong when one holds the well-being of
others so directly in ones hands, but professionalism doesnt increase
your salary, or get you malpractice protection, or buy you a house in a
rich suburb with good schools.
134 | False Consciousness

Group identications play overlapping and critical roles in human


lives and human history. Whatever ones identications, it is always pos-
sible to conceive of the downsides, including the possibility that one is
participating in ones own self-destruction. But, this too, posits a false
dichotomy. Group identications are crucial. Some people have many
of them. They shift daily, weekly, contextually, generationally. It is a
pervasive mistake to force the choice between individualism and group
identication, just as it is a mistake to force a choice among group iden-
tications.
If it were up to me, I would arrange that all dialogue were character-
ized by tact and respect. The part that is up to me is wanting to learn
when I am wrong, or when I can do better. I pay some people a lot of
money to help me out with this project. A wise physician, therapist,
lawyer, handyperson, friend, or even theoreticianall those helpers are
worth their weight in gold. When I have thought of people (especially
those I like and otherwise trust) as being wrong or deluded, my conclu-
sions tend to follow from having observed similar mistakes or delusions
among my own internalized oppressions. I have no doubt that it is my
responsibility to continue to take that self-inventory, nor any doubt that
I will uncover more sources of self oppression. Just as surely, however,
I believe that others suffer from similar self-delusional aspects of the
human condition.
More particularly, just because allegations of false consciousness
abound and have been a source of controversy doesnt mean that hege-
mony is not a killer. The responsibility of being a political actor, a law-
yer, an author, a teacher, a parenta humanis to nd evidence and
good arguments and alternatives in every situation where it appears that
a person or group could protably reinterpret her or their own experi-
ence. And it is never that you are completely wrong and worthless.
These interactions are always partial; it is this aspect of experience that
could be reinterpreted, or that aspect of group identication that could
be recast.
I suppose that we could agree just to get rid of any concept of false
consciousness. Id rather that we understand what the concept has
meant or could mean. For all the postmodern critique and other sources
of destabilization of political action, we have got to have some concepts
(and names for) the traps and, yes, falsehoods, that invite people with-
out power to participate in their powerlessness. All three interconnected
False Consciousness | 135

terms false consciousness, ideology, and hegemony have taken a


beating and have diffuse meanings. I would welcome the introduction
of new terms or the clarication of existing termsweve had some
luck with social mystication, internalized oppression, manipulated
consensus, and information managementthat would allow us to talk
about these things without having to reinvent the wheel every single
time we sit down to talk.
The good news about hegemony is counterhegemony. Even when I
agree with what postmodernists have to say, I would almost never
express things the ways they tend to do. Nonetheless, along with post-
modernist philosophers such as Paul de Man and Jacques Derrida, I
have to agree that even the most successful hegemonic regime grows the
seeds of its own destruction, that every hegemonic text can subvert its
own meaning. The messages of white supremacy, of male supremacy,
and of American military/capitalist supremacy are incontrovertibly false
and incontrovertibly vulnerable, if only because they take so much
energy to maintain. Even though I dont always see those messages sub-
verting themselves, I do see how they have to give way. The conscious-
ness of people is the water; the structures are the stone.
Existing power structures end up letting books like this be published.
And this is not a revolutionary book. It is just a familiarly subversive
book, insofar as it sticks to the claim that everything we think we know
is contingent. That is not, however, just an intellectual position. It is a
necessity. The constant bombardment of messages that put us each in
our respective isolated places must be resisted because they are not
going to stop. As Chomsky said, For those who stubbornly seek free-
dom, there can be no more urgent task than to come to understand the
mechanisms and practices of indoctrination.37 In any case, counter-
hegemonyor whatever less fancy word you want to insert hereis a
pretty good way of being in the world. Per Alice Walker, resistance is
the secret of joy.38 It sure beats feeling crazy.
I was blessed while in private practice to work for a small rm in Los
Angeles that did movie-star divorce work, which was fun, and which
also helped to nance Title VII plaintiffs work. One of my beloved
bosses there, Blanche C. Bersch, had previously served as a regent for
the California State University system. Blanche reported that in her rst
regents meeting, after some person had said something aggressively
unhelpful, she burst out with Thats bullshit. Blanche says that in the
136 | False Consciousness

intermission of the meeting, then-Governor Jerry Brown took her aside


and told her, Blanche, regents do not say bullshit. Regents say I am
not persuaded.
There are words we use and words we dont use, depending upon the
situation. There are better and worse ways of persuading people. It is
always best to say only what we know, and to refrain from claims of
certainty even then. When matters of importance are being discussed,
we need to open our minds to new information and perspectives, and to
entertain the possibility of changing our positions. There are even times
to be silent.
8

The Future of Legal Feminism

The result of men constantly, fervently and publicly thanking God


that they are not women has been to make it hard for women to
thank God that they are.
Richard Rorty

Were not crazy. Were just discouraged.


Stan Laurel

In the feminist law teaching business, there is an exercise all


teachers and students eventually go through. It is called How should
the case have come out? This exercise is not the usual law school class
discussion about how doctrine and facts interact. This feminist exercise
is about how legal disputes should come out in terms of the bigger pic-
tures of social relations and systems of disadvantage. The exercise has
become more complex as feminist legal theory has become more com-
plex, drawing into question legal strategies that once seemed sound, and
allowing for results to be reinterpreted in myriad ways.
Thus, for example, what of a case that forced a state-supported mili-
tary college to open its doors to women, only in 1996, after a century
and a half of producing male citizen-soldiers in a culture that can be
described only as women-loathing?1 What of the fact that Justice Ruth
Ginsburg, formerly a crusading feminist litigator, consistently referred
to that institution in deferential, even glowing, terms?2 Is opening the
college to women what a commitment to sex equality required? If it
were technically possible as a constitutional remedy, shouldnt the Vir-
ginia Military Institute have been closed or deprived of any public sup-
port? Wouldnt it have been far better to seal over that particular abyss
once and for all? As noted in chapter 5, militarism is a context where
feminism focuses discussion in a particularly acute way.

137
138 | The Future of Legal Feminism

As another episode in this exercise, consider the Supreme Court deci-


sion holding that peremptory challenges to potential jurors cannot be
based on sex. The matter happened to involve the exclusion of male
jurors in a case seeking to establish paternity and an obligation for child
support.3 Like the decision forbidding race-based peremptory challenges
on which it followed, this 1994 decision caused a great deal of conster-
nation among those trial practitioners who thought the entire point of
peremptory challenges was to get rid of jurors for any reason whatso-
ever, the more prejudicial the better, in some sense. Even if we can
administer the notion of any reason at all except these reasons, on
what grounds must juries be race- and gender-integrated, if law is race-
and gender-blind? Most important from my point of view, what of
Justice OConnors intuition that in certain cases a persons gender
and resulting life experiences will be relevant to his or her view of the
case?4 In half-joking conversation, women have often noted that be-
cause men havent done such a swell job running the world, maybe
women should get a turn. Just to see how it would go, and without
necessarily making any essentialist commitments, does anybody have a
problem with having all-female juries for a while? How about half-and-
half juries, or a half-and-half Congress, or a rotating White House?
I dont know whether these proposals could be structured in serious
or plausible ways. Perhaps formal equality and administrative difcul-
ties shut them down before anyone could advance the conversation any
further. Theres another kind of critique, however, that Id like to reach
here. That kind of critique might be called the matter of gender trou-
ble.5 It describes the set of problems we buy when we rely on any xed
gender notions at all.
The insights collectively called gender trouble can loosely be iden-
tied as poststructuralist. That tag encompasses a lot. The post
part refers to a stage beyond something called structuralism, a set of
twentieth-century efforts to go beyond mere skepticism. In the strug-
gle described in chapter 2, by the early twentieth century there were
no longer metaphysically authoritative sourcesneither religious nor
scientic nor philosophical sources of comfort for human anxiety.
Structuralism was a movement arguing that though we may not be
able to discover or depend upon any universal laws of epistemology,
ethics, or politics, perhaps we can locate in language some consisten-
cies that reveal the deep structures of our species ways of getting
through. Led by the Swiss linguist Ferdinand de Saussure, the struc-
The Future of Legal Feminism | 139

turalists identied a relationship between signier and signiedbe-


tween words and what they discussindependent of both individual
language users and any possible underlying furniture of the universe.
But structuralism led to a set of binary propositions about signier and
signied that were rather inexible, that were, in the contemporary
phrase, overdetermined.
Poststructuralism refers to the group of intellectual effortsinclud-
ing postmodernism, postcolonial theory, antiessentialism, deconstruc-
tion, and queer theorythat celebrate the lack of reliable boundaries in
life. Poststructuralism is about exposing and subverting supposed deep
structures. Of most salience to this discussion is postfeminism, the
aspect of poststructuralist thought that inquires whether the construc-
tion of the category of women as a coherent and stable subject [is] an
unwitting regulation and reication of gender relations.6
That is, postfeminism (or poststructuralist feminism) wants to incul-
cate a permanent questioning of gender categories, and wants to suggest
that prior feminist approachesI resist the term feminist orthodoxies
make matters worse by focusing on existing structures of gender, as if
those categories werent always already completely contingent. Lets
add this to the How should the case have come out exercise with ref-
erence to an area of feminist effort that has been often been a target of
poststructuralist thought: sexual harassment law.
Among U.S. sexual harassment cases, a notable site of contention has
been Oncale v. Sundowner Offshore Services, Inc.,7 in which a unani-
mous Supreme Court held that male-on-male sexual harassment was
actionable under U.S. civil rights statutes, regardless of the absence of
allegations or proof of the sexual orientation of the victim or the per-
petrators. I happen to think Oncale is the best case ever decided by the
U.S. Supreme Court in the cause of gender liberation, but it has pro-
duced considerable criticism from ostensibly progressive legal theorists.
Notably among them is Professor Janet Halley, who argues that Oncale
could signal a new regime of homosexual panic, and be the occasion
for an onslaught of persecutions of gay men. Oncale is an invitation to
employers and employees to target sexual minorities, in a process of
imagining (maliciously or otherwise) that suspected queer coworkers
are coming on to them.8
Ive not been able to nd any evidence that this has happened, but I
would both expect and accept some such cases. Hysterical reversals of
laws meaning have followed every progressive development. I havent
140 | The Future of Legal Feminism

kept track of the proportionbut it was large last I lookedof cases of


sex discrimination brought by male people and cases of race discrimina-
tion brought by white people.9 The fact that ostensibly progressive
scholars have become exercised about homosexuality panic in the
sexual harassment context has led others to think that they may suffer
from sex equality panic.10 To make a long story short, in the Oncale
context, the How should the case have come out exercise leads di-
rectly into the feminist/poststructuralist debate about laws relation to
sexuality. Some poststructuralists think some feminists are censorious,
prudish regulators of sexuality;11 some feminists think some poststruc-
turalists are defenders of male supremacy and eroticizers of sexual hier-
archy and pain.12
I am not able to resolve that debate, but I dont have to in this con-
text. My point is that Oncale was important because it got the judiciary
off the dime on complicated questions of gender. That is, sexual harass-
ment law made it possible, rst, to see that something that had thereto-
fore been portrayed as a fact of nature might actually be an artifact of
culture. Second, sexual harassment law made it possible to see that the
practice of imposing economic inequality through sexualization of the
workplace was sex discrimination, even though it could happen to both
sexes. Third, in Oncale specically, courts could understand the injury
and see the connection with gender performance. Particularly after
Oncale, different aspects of judicial understandings of gender are on a
happy collision course. The U.S. federal courts are close to a deeper
understanding of gender nonconformity as a prohibited ground for dis-
crimination.
This prospect is demonstrated by comparing cases from the Ninth
Circuit, the rst being a garden-variety grooming case in which the
plaintiff lost. In Jespersen v. Harrahs Operating Company, Inc., the
court denied the plaintiffs claim that she had been sex discriminatorily
red by Harrahs casino for not wearing makeup. Ms. Jespersen had
been a successful Harrahs bartender for nearly twenty years. She hated
wearing makeup and thought it interfered with her job.13
Before 2000, Harrahs had encouraged but not forced its female
employees to wear makeup. A policy begun thereafter is loaded with
grist for our mill. It was called a brand standard of excellence. It re-
quired beverage servers to be well groomed, appealing to the eye, be
rm and body toned, and be comfortable with maintaining this look
while wearing the specied uniform.14 Female beverage servers had to
The Future of Legal Feminism | 141

have their hair teased, curled, or styled and to wear foundation/con-


cealer and/or face powder, blush, mascara, and lip color. Heres an
astonishing part. Harrahs called its standards the Personal Best pro-
gram. The employer took pictures of employees when all dolled up, and
maintained those pictures as the standard to which each employee
should thereafter conform. Ms. Jespersen refused to comply with the
new standards, and was red. The Ninth Circuit panel ruled against her
claim that male and female employees had been treated differently.
However, it was also the Ninth Circuit that recently decided gay-
friendly sexual harassment claims, regarding the rights of gay men to be
free from sex discrimination based upon their nonconformity to gender
norms.15 In the more recent Rene v. MGM Grand Hotel, the plaintiff
was an openly gay butler on a VIP oor at the hotel. He was taunted,
his coworkers would touch [his] body like they would to a woman,
they grabbed his crotch and goosed him. Similarly, in Nichols v. Azteca
Restaurant Enterprises, Inc., the openly gay plaintiff was verbally ha-
rassedcalled by multiple pronouns, called a faggot and a female
whore. He was mocked for carrying his serving tray like a woman.
The Ninth Circuit expressly held that this was sex stereotyping pre-
cluded by the U.S. Supreme Court in Price Waterhouse v. Hopkins way
back in 1989.16
The difference among the Ninth Circuit cases is not any difference
between sexual harassment and other sex discrimination doctrines. As is
often misunderstood, sexual harassment is a subset of sex discrimi-
nation law. Price Waterhouse was not a sexual harassment claim but
an ordinary sex discrimination in employment case, where the female
plaintiff was not made a partner in the accounting rm because she was
insufciently feminine. Check out the pattern: it is illegal to force a fe-
male plaintiff to do a gender performance (thou must be more feminine)
and illegal to persecute male plaintiffs for their gender performance
(thou must be less feminine). Based on that pattern, surely the panel
decision in Jespersen is incorrect. The only difference in the pattern is
that the plaintiffs in the sexual harassment cases were male, and that
probably had some psychological power.17 Of course, should any judges
clue into that particular difference, they will have to conclude that the
pattern of their own cases is sex discriminatory.
Judge Sidney Thomas, dissenting in the Jespersen case, got it. What
Title VII prohibits, said Judge Thomas, are appearance requirements
that rest upon a message of gender subordination.18 I believe that the
142 | The Future of Legal Feminism

collision of the grooming and the harassment cases will result in the
elimination of the obviously gender-based grooming code exceptions
to employment law, which could throw gender expectations into a tail-
spin, and thus tend toward greater legal protection for sexual noncon-
formists. We werent getting anywhere very fast going after the groom-
ing cases qua grooming cases.19 Oncale was the key that turned this
particular lock. The Oncale Court came close to understanding that the
issue was not that Joseph Oncale was harassed because he was a man
but harassed because of the kind of man he was perceived to be.20
In this focus on how gender manifests in the world, and on the im-
portance of shifting perceptions of it, lawyers (who are feminist whether
they know it or not) are implementing that aspect of poststructural-
ist queer theory that emphasizes gender as performativity, a notion
given the greatest currency by Professor Judith Butler. According to her,
having a gender is constituted through discursively constrained per-
formative acts that produce the body through and within the categories
of sex.21
Among examples of feminist/queer theory victories are relatively new
legislative prohibitions on discrimination based upon gender identity.
I participated in one such legislative project. Among my activities as a
lawyer has been working with Equality New Mexico, a gay/lesbian/bi-
sexual/transgender (GLBT) organization in Santa Fe. In 2003, we suc-
ceededon the twelfth tryin getting the New Mexico legislature to
amend the state Human Rights Act to include sexual orientation as a
prohibited basis of discrimination. It was only the rst try, but we also
got the legislature to include gender identity as a prohibited ground.
The denition of gender identity that we helped to draft states:

gender identity means a persons self-perception, or perception of


that person by another, of the persons identity as a male or female
based upon the persons appearance, behavior or physical character-
istics that are in accord with or opposed to the persons physical
anatomy, chromosomal sex or sex at birth.22

So far so good. The votes were very close. Some of the legislators were
puzzled about why it is was necessary to list any prohibited grounds
of discrimination at all;23 others were confused about how sexual ori-
entation and gender identity might cover different groups. The bill
we pushed seemed chaotic and dangerous to them, invoking the specter
The Future of Legal Feminism | 143

of drag queens in nun outts showing up for work at banks.24 Actually,


I have no idea whether the New Mexico law would protect that. It does
not contain an appropriate appearance exception, as some other stat-
utes and ordinances have, allowing employers to insist on, say, business
attire in business settings. Moreover, the very few cases interpreting sim-
ilar gender identity protections have been very narrow, and may be
said to have missed the point. Thus, the New York Appellate Division
dismissed a transgender case because the complaint alleged not that
the transgender individuals were selectively excluded from the bath-
rooms . . . but that they were excluded on the same basis as all biologi-
cal males and/or females are excluded from certain bathroomstheir
biological sexual assignment.25
These problems about various understandings of gender identity
recurring now have a familiar ring. Is it a matter of sex discrimination?
(Defendant argues that [its] restroom policy segregates restroom use
by genitalia, not by sex.26) A question of choice? A fact of nature? A
matter of self-expression? A disability?27 When I hear these discussions,
I am transported to 1974, when Professor Wendy Williams and the rest
of us in the legal feminism business were temporarily struck dumb after
Geduldig v. Aiello, the case essentially holding that a failure to under-
write disability insurance for pregnancy was not sex discrimination so
long as both pregnant men and pregnant women were denied cover-
age.28 Back then, we had to wonder. Of course pregnancy was not itself
a disability but could temporarily disable a pregnant woman. Of course
pregnancy was voluntary, but not really like cosmetic surgery. Of course
pregnancy was natural, but does that inexorably mean beyond legal
protection? What existing legal category could pregnancy be blud-
geoned into?
The answer turned out to be, pregnancy is pregnancy. What the
struggle over the categorization of pregnancy taught us was that it is
possible legally to address a complex social reality without analogizing
it to anything. I expect that at least in the legal realm, we will come to
some sort of similar resolution to the question of gender identity. Gen-
der identity is what it is, or rather, is what individuals feel and manifest
on a complex and shifting basis. Again to quote Professor Butler:

There is no ontology of gender on which we might construct a politics,


for gender ontologies always operate within established political con-
texts as normative injunctions, determining what qualies as intelligible
144 | The Future of Legal Feminism

sex, invoking and consolidating the reproductive constraints of sexual-


ity, setting the prescriptive requirements whereby sexed or gendered
bodies come into cultural intelligibility.29

I emphasize the above phrase, what qualies as intelligible sex,


because it is exemplary of the problem of legal rules. Most poststruc-
turalist philosophy is unhelpful to law. There may be no ontologyno
furniture of the universethat tells us once and for all what qualies as
sex, or gender, or race, or anything else. But the law has to use such cat-
egorical terms, if only provisionally. And the complications are strategic
as well as structural. I agree with Butlers characterization of gender
trouble, but I cannot picture myself talking to legislators about the
need to safeguard the uncontrollability of the signied30 and to open
paths for the subversion of gender norms by parody. I cant imagine
telling them why the nun costume on the biologically-born-male bank
teller might be a social good.
Working in law is an opportunity for exploring the intersections
among structuralist and poststructuralist approaches. The law is, by
denition, a structuralist enterprise (or a pre-poststructuralist enter-
prise).31 It posits what qualies as intelligible sex, or intelligible racial
considerations, or intelligible gender behaviors. And then, having pos-
ited these descriptions, it starts asking itself interminably what it meant
to do with them. Legislatures enact what they want, but at least by the
time we add petitioners and courts to the picture, the interpretation of
every law is a foregone inconclusion. Good lawyers I know were al-
ready epistemologically poststructuralist. They already understood that
they were re/presenting a text (what some call cases or clients) in a
vortex of interpretational uidity.32
Of course, lawyers must be extraordinarily careful not to fortify the
structures of oppression that we formally resist, but simply identifying
those structures in the prescribed terms of legal discourse does not con-
stitute such reinscription. That is, legal categories identify historical
realities, and some (perhaps all) categories of non-discrimination iden-
tify calcied social performances. The fact that a category is listed
among prohibited classications means that someone has seen how the
category is itself a masquerade. But that is not the same as claiming
to know, or as seeking to impose on anyone else ones own perception
of what precisely is masked by masquerade.33 The fact that any legal
category is approximate and uid is why I insisted among the aspects of
The Future of Legal Feminism | 145

feminist legal method in chapter 6 that any legal answer be regarded as


provisional.
I do not regard conversations between feminists and poststructural-
ists as a zero-sum game, or, as Professor Ruthann Robson might say,
anything involving pie.34 However, in every such conversation we do
seem to re-cover a lot of well-covered ground. It is sometimes good to
do so, but Im wondering whether there might be some aspects of dis-
cussion that we could conditionally agree upon. The following list of
eighteen themes could be a springboard for collective forward motion.

1. Metaphysically, nothing is certain, not even gravity, nor even the


notion of certainty.
2. Distinctions, boundaries, and borders are linguistically, cultur-
ally, and psychologically constructed. Those constructions are
contingent.
3. There is no outside, nothing beyond the world of human dis-
course to stand on when participating in social life, including
participation in law and philosophy.
4. Poststructuralist thought, including postfeminism and queer the-
ories in their postmodern forms, is philosophically unassailable.
(As are all versions of skepticism.)
5. Conversation is nonetheless possible. It necessarily proceeds by
processes of categorization.
6. Categorization is itself a contested concept, even inor perhaps
particularly inthe natural sciences.
7. The most important legal conversations involve discussions about
when particular categories are necessary or possible or mistaken
or in need of abandonment. In this regard, I recall a largely
forgotten aspect of Professor Angela Harriss 1990 article that
became famous for its attack on feminist essentialism.35 The
article began with two epigraphs, one quoting the U.S. Constitu-
tions invocation of [w]e, the people,36 and the other quoting a
wonderful story by Jorge Luis Borges about a person who re-
membered everything in complete detail (such as how each leaf
on each tree looked on a certain date at a certain time), and
could only recount experience by taking as much time as it took
to live it.37 In short, Professor Harris was not condemning all
categorization. Rather, she was contrasting essentialism, on
one hand, understood as a kind of overgeneralization, with what
146 | The Future of Legal Feminism

philosophers call radical nominalism, on the other hand, un-


derstood as a kind of undergeneralization that leads to commu-
nicative failure. Harris was talking about the need for conver-
sation always to proceed in the territory between saying every-
thing and saying nothing. Professor Harris gets too little credit
for identifying the nominalist, merely liberal, and politically
hopeless place to which some poststructuralist thought leads.
8. Categories are contestable. The categories of race, ethnicity, and
culture are contestable. The categories of gender, family, mar-
riage, man, woman, male, female, masculine, feminine, homo-
sexual, heterosexual, gay, lesbian, bisexual, transgender, and
queer always have been, are now, and always will be contestable.
As described in chapter 2, contemporary ethicshence much of
legal discoursecan be understood as engaging in these contests
in good faith, not just with due regard for the arguments pro-
posed by others but understanding the insights of others in order
to improve ones own.
9. We have to include in the list of contested concepts those of left,
right, progressive, and status quo. Almost all feminists, antisub-
ordination theorists, and poststructuralists want to regard them-
selves as progressive. The challenge, of course, is to explain or
justify a claim to political progressivism in light of skeptical cri-
tiques, including our own.
10. Gender is performative. Gender, in all its manifestations, is
also a function of existing social power. In all the ways that real-
ity bites, but to a degree of gruesomeness that is impolite to
acknowledge, gender hurts.
11. Suffering exists.
12. Suffering is itself a contested concept,38 but should include
mere psychological injuries on a wide scale. I mean emphati-
cally to include among separate generously compensable injuries
those caused by living under systems of inequality. Equality
claimants must be re-cognized as special attorneys general,
doing societys work in their courage to come to court, whether
or not they have proven other specic damages to themselves.
13. It is a legal, political, and ethical good thing to do whatever one
can to reduce suffering, ones own and that of all others. Why is
that so? I cannot resolve the issue of altruism in this book, or
any book. It has been a matter of debate for centuries. I believe,
The Future of Legal Feminism | 147

however, that there is substantial agreement among feminists,


including postfeminists,39 that the point of our work is to gure
out the conditions for all individuals to have livable, and even
dignied, lives.
14. Statism is not the point. In conventional political debate,
left versus right has largely been a matter of peoples rela-
tionship to state power. Conventionally, for progressives, the
state was always the bad guy. But there are no longer clear dis-
tinctions that can be drawn solely on that basis. The basic tenet
of feminism has been that the personal is political, and the
opposite is also true. Power exists in many shifting forms. It is
not statism to ask government to intervene on behalf of people
who do not possess power on their own in the world as now
constituted. Thus, although we should continue debate about the
nature and limits of invocations of state power, it is nave to
accuse feminists of statism, whether we are called feminazis
by Rush Limbaugh, or proponents of Governance Feminism
by people we know and love.40
15. Access to government, however, is not automatically cool. Pro-
fessor Ruthann Robson has been right in her original and pro-
lic work, consistently illustrating the domesticating effects of
voluntarily engaging with and seeking legitimation from the
law.41 Perhaps particularly in the litigation context, where the
few may affect the many, deliberations of clients and their law-
yers should always account for the limits of law and potential
harms of legal decisions. For example, the inestimable commit-
ment of resources to the same-sex marriage issue was caused by
a few plaintiffs and lawyers, who in my view exhibited an ap-
palling lack of solidarity.
16. Solidarity is possible.
17. Solidarity is also the only viable option for progressive people.
The liberal ideal of absolute individualism makes no sense in a
world of inevitably interdependent language users.
18. Solidarity requires constant reevaluation of issues and constant
rejuvenation of commitments and coalitions.

With these eighteen themes in mind, Id like to highlight a contempo-


rary solidarity imperative: the right to abortion. In the future, other
issues may carry greater urgency, but as I write, abortion is on the
148 | The Future of Legal Feminism

block. It is for sale to political contributors, and is subject to other


kinds of blocks: chopping, mental, and stumbling. In my view, in the
United States, abortion is the queerest issue there is, for at least four
interrelated sets of reasons.
First, abortion regulation is the most salient example of disciplin-
ing the body. Consider how much legislative and judicial energy has
been consumed with consideration of whatever restrictions on access to
abortion can be thought up and ne-tuned to be constitutional. That
history is an astonishingly detailed discourse about which mechanisms
of social control ensure the (re)productivity of womens bodies. Re-
strictions on abortion are also chartable as a list of permissible and
impermissible reasons for deciding to terminate a pregnancy. One is
ineluctably reminded of the ongoing kerfufe about what causes
homosexuality (and what causes heterosexuality and so forth). It is con-
venient to the powers-that-be to portray homosexuality as an uncon-
strained choice that could simply be reversed by an act of individual
will, or as a biological defect, that can be remedied by the advances
of science. Abortion is another prominent occasion on which to safe-
guard the uncontrollability of the signied: reasons to have abortion
vary hugely, and simply must not be constrained by some legislatures
schedule of acceptable considerations.
Second, that bodily control is scarily demographicif not eugenic
in character. The federal right to abortion was substantially decimated
by 1980 because of the cases in which the U.S. Supreme Court held that
governments didnt have to provide funding to indigent women, even
for medically necessary abortions. In one of those cases, the Court said
that the State might wish to encourage childbirth due to demographic
concerns that are basic to the future of the State.42 What concerns
are those? Enlarging the tax base? Increasing congressional representa-
tion? Providing cannon fodder? Similar arguments against same-sex
marriage43 and parenting by GLBT people helped me see that the con-
cern is also propagandistic. Barefoot and pregnant is not a great
social policy in every respect, but it accurately describes womens depen-
dency under present social arrangements, and is a stereotype that re-
quires endless modeling. Likewise, though there are no data to indicate
that children actually do better when raised by heterosexual couples,
the state seems condent that heterosexual couples will more success-
fully conscript children into the gendered system.44
Third, a subtext of the abortion debate is the enforcement of sexual
The Future of Legal Feminism | 149

conformity. The need for abortion is associated with (womens) sexual


promiscuity. They have to pay for that, because they have breached the
social contract. Never mind that the actual terms of the contractthat
a woman has to be simultaneously sexually accessible and virginalare
impossible to meet. The damages consist in making that impossibility
visible. This is also a familiar argument in the queer universe: go ahead
and do it, just dont aunt it. In legal terms, after having subjected you
to constitutionally enshrined hatred for seventeen years, go ahead and
have your queer sex.45 Just dont expect your intimate relationships to
be publicly valued or subsidized as other relationships are.
Fourth, the drumbeat about the evils of abortion serves to remind
women that any life, even a potential life, is more valued than theirs. As
one of my students put it in an immortal paper title, Gentlemen Prefer
Fetuses.46 I am not speaking here about doctrine; Im aware thatat
least as of nowabortion restrictions must have exceptions to pro-
tect the life of the mother.47 Im talking instead about the more existen-
tial messages. Be ashamed. Remember that most public discourse does
not even weigh the costs to you of nine months of pregnancy and the
stresses of adoption or years of child rearing. If abortion restrictions
and moral condemnation send you to a back-alley butcher, so be it.
This, too, is queerly familiar. I dont have to remind queers about the
economy of shame, nor about societys failure to value all that is lost in
the closet, nor about the dangers that we face from gay bashers.
At the moment, abortion is the veritable line in the sand when it
comes to disciplining and deploying the body. The barricades will be
reestablished, and all the feminists, liberals, and all avors of poststruc-
turalists need to show up. Matters of reproductive autonomy are not
about constitutional doctrine or medical minutiae. They are about mak-
ing connections with other issues that confront different people differ-
ently; they are about the nature and limits of the disciplinary society.
I noted above that as of 1980 the abortion right was virtually ex-
tinguished for indigent women. As of 1989, four Justices indicated in
Webster v. Reproductive Health Services that they were ready to elimi-
nate the right altogether. Justice Harry Blackmun, the author of Roe v.
Wade, was alarmed: For today, the women of this Nation still retain
the liberty to control their destinies. But the signs are evident and very
ominous, and a chill wind blows.48 Blackmuns language provoked
one of two reactions in the lawyers I know: they either rolled their eyes
or got the shivers. The eye-rollers were those for whom the right to
150 | The Future of Legal Feminism

abortion was about doctrine and doctors (as it was for Blackmun at one
time), and thought Blackmun was being over dramatic in using the
words he did. The rest of us agreed with Blackmun that the stakes could
be described as womens destinies.
At about the time of the Webster case, Justice Blackmun gave a lec-
ture at the University of New Mexico Law School, where I was then
teaching. Someone asked him to identify the biggest difference in Su-
preme Court practice that he had observed over the years. He unhesitat-
ingly replied that the difference was women advocates, both the in-
creased numbers of them and the sort of advocacy they brought before
him. He was impressed by their insights and by the dedication that they
brought to their causes. He said that their preparedness and their pas-
sion had raised the quality of lawyering before the Court to such a level
that he was almost scared of them.
Ive always thought that was a telling phrase. Blackmun was a man
who was scared of various things at various times, but who always
eventually rose to the occasion and attempted to do the right thing. Pur-
suant to the terms of his will, Justice Blackmuns papers became public
only in March of 2004. In the rst book derived from these papers,
Linda Greenhouse states that [o]n Harry Blackmuns improbable jour-
ney, becoming a feminist icon was perhaps the most improbable desti-
nation of all.49 Greenhouse describes a judge who was initially wary
and a little grumpy about early womens rights litigation.50 Nonethe-
less, his papers show a man paying close attention, grappling with his
own biases, and overcoming his own lawyerly reticence and conserva-
tive ideology. By the end, as his opinions show, he understood that
abortion was an equality issue, and part of a larger vision of human
dignity.51 Blackmun incorporated the arguments of others in ways that
improved his own arguments and understandings. He was, therefore, in
the terms I have proposed in this book, an ethical judge.
In a liberal mode, one is tempted to conclude that they cant all be
Justice Blackmun, but Im not willing to let judges off the hook. I
understand the pressures on them to conform or to pretend to conform
to a vision of a Rationalist universe, a world where results are com-
manded by or must match up with some higher authority that can be
identied and unambiguously interpreted. But that is a fantasy of pris-
tine decision making, a wistful desire for life to have more certainty
than it does. As Professor Richard Rorty said, [T]he need for some-
thing ahistorical which will ratify ones claims, is itself a symptom of
The Future of Legal Feminism | 151

power-worship of the conviction that unless something large and


powerful is on ones side, one shouldnt bother trying.52 The fantasy of
value-free adjudication is not one that should be encouraged.
Neither professional education and prestige, nor even conrmation
by the United States Senate, bestows the power of ight. Lawyers cant
soar above social life. Our footprints are ultimately discernible on all
that we do and dont do. Im not asking a judge to decide in my favor
because Im big-word-using academic or because my clients causes are
just according to some transcendent standard. Rather, Ive read the
Constitution, and I see the word equal in there. Ive mulled over the
cases, and see that these legal commands involve essentially contested
concepts. Grimy and changing concepts. My loyalty to the rule of law
depends on its being able to reach through the grime of history and pol-
itics in order to achieve incremental measures of dignity for real people
in real life situations. If that is something other than the usual bloodless
model of legal principle, so be it. If that is result-orientation, Im proud
of it.
It isnt true that judges cant all be Justice Blackmun. Rather, the
future of legal feminism depends upon doing more of that which turned
him around. And doing it better. Taking all the complexities into ac-
count. This is no time to take a break from feminism. Feminism is a tra-
dition that broke through seemingly polar ice on matters of what it
means to get a little R-E-S-P-E-C-T. I dont want to forestall criticisms
of feminism. I want to enlarge feminisms range, and I dont even care
very much what we call it. Among progressive lawyers and thoughtful
lawyers such as Justice Blackmun, who didnt even identify as progres-
sive, the insights of feminist legal theory are already at work. As much
as it hurts some to admit it, at least we all need to be feminists now.
Lets explicitly consider and apply the insights of feminist legal theory,
and then get on with all the business at hand.
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Notes

notes to the introduction

1. See Ann Scales, Towards a Feminist Jurisprudence, 56 Indiana Law


Journal 375 (1981); The Emergence of Feminist Jurisprudence, 95 Yale Law
Journal 1373 (1986); Militarism, Male Dominance, and the Law: Feminist
Jurisprudence as Oxymoron? 12 Harvard Womens Law Journal 25 (1989).
Some dislike the term jurisprudence because it sounds haughty or pseudosci-
entic. I, too, am critical of scientistic pretense in law (a position developed in
chapter 3). I am fond of the term jurisprudence, however, for two reasons.
First, in my mind, it refers to the legal theory generated by lawyers, as opposed
to theories about law emerging from other disciplines. Second, the term makes
it possible to refer to those engaged in the enterprise as jurisprudes, and thats
fun. In any case, I use the terms feminist jurisprudence and feminist legal
theory interchangeably in this book.
2. See Blacks Law Dictionary (8th ed. 2004) (under category of juris-
prudence, crediting me with rst published use of the term feminist jurispru-
dence); Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories,
4 Berkeley Womens Law Journal 191, 193 (198990) (reporting that I coined
the term as a student in 1977, while planning a panel for the celebration of the
twenty-fth class of women to graduate from Harvard Law School); Sheila
James Kuehl, For the Womens Reach Should Exceed Their Grasp, or Hows
a Law Journal to be Born? 20 Harvard Womens Law Journal 5, 7 (1997)
(same).
3. Martha Chamallas, Introduction to Feminist Legal Theory (New York:
Aspen Publishers, 2d ed., 2003).
4. I will refer in this book to most of these variations and achievements, and
will offer denitions as needed, but I refer the reader to Professor Chamallas for
the basic bibliography.
5. Matthew Brelis, Law Professors Murder Still Unsolved a Year Later,
Few Leads in Classic Whodunit, Boston Globe, April 5, 1992, at 29; Mat-
thew Brelis, An Accomplished Life, A Brutal Death, Boston Globe, April 14,
1991.
6. Mary Joe Frug, A Postmodern Feminist Legal Manifesto (An Unnished

153
154 | Notes to the Introduction

Draft), 105 Harvard Law Review 1045 (1992); Fox Buttereld, Parody Puts
Harvard Law Faculty in Sexism Battle, New York Times, April 27, 1992, at
A10.
7. For an almost visceral experience of the disappearing of Mary Joe Frug,
read Peter Collier, Blood on the Charles, Vanity Fair, October 1992, at 144.
Professor Patricia Williams says that what she found remarkable about the par-
ody incident was that discussion of it
on campus and in newspapers, swirled mostly around whether the editors
(who went on to employment as clerks of Supreme Court Justices and
associates in powerful rainmaking rms), had the legal right to say it.
Indeed they did. That said, the curious culture of sadism that produced it
was scarcely addressed.
Patricia J. Williams, The Disquieted American, Nation, May 26, 2003, at 9.
8. See Ann Scales, Disappearing Medusa: The Fate of Feminist Legal The-
ory? 20 Harvard Womens Law Journal 34 (1997).
9. Professor Halley has published various articles making the argument. Best
known is the one she published under the name Ian Halley, Queer Theory by
Men, 11 Duke Journal of Gender, Law, and Policy 7 (2004).
10. My brief talk to the Tenth Circuit is reprinted as Law and Feminism:
Together in Struggle, 51 University of Kansas Law Review 291 (2003).
11. Recurring in the debate are Harry T. Edwards, The Growing Disjunc-
tion Between Legal Education and the Legal Profession, 91 Michigan Law
Review 34 (1992), and the other articles in that symposium issue of the Michi-
gan Law Review. See also Alex Kozinski, Who Gives a Hoot about Legal
Scholarship? 37 Houston Law Review 295 (2000); Sanford Levinson, The
Audience for Constitutional Meta-Theory (or, Why, and to Whom, Do I Write
the Things I Do?), 63 Colorado Law Review 389 (1992); David M. Ebel,
Why and to Whom Do Constitutional Meta-Theorists Write?A Response to
Professor Levinson, 63 Colorado Law Review 409 (1992).
12. For an excellent overview of the sources, see William W. Fisher III, Mor-
ton J. Horwitz, and Thomas A. Reed, eds., American Legal Realism (New York:
Oxford University Press, 1993).
13. The statement has been made so frequently that it has become a truism
to refer to it as a truism. Lauren Kalman, Legal Realism at Yale, 19271960
(Chapel Hill: University of North Carolina Press, 1986), at 229.
14. David Luban, Whats Pragmatic about Legal Pragmatism? 18 Car-
dozo Law Review 43, 72 (1996).
15. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law
Review 457, 47778 (1897).
16. Richard A. Posner, What Has Pragmatism to Offer Law? in Michael
Brint and William Weaver, eds., Pragmatism in Law and Society (Boulder: West-
view Press, 1991), at 44.
Notes to Chapter 1 | 155

17. Thomas C. Grey, Freestanding Legal Pragmatism, 18 Cardozo Law


Review 21, 26 (1996).
18. Will Rogers, quoted in Joseph H. Carter, I Never Met a Man I Didnt Like:
The Life and Writings of Will Rogers (New York: Avon Books, 1991), at 186.
19. The jurisprudential views that include lenses of class, race, ethnicity
and/or gender are the ones that are usually deemed illegitimate or unhelpful. For
example, Judge Alex Kozinski of the United States Court of Appeals for the
Ninth Circuit has acknowledged that at least two jurisprudential movements,
Legal Realism and Law and Economics, have had profound inuences on the
administration of the law. He went on to predict, however, that Critical legal
studies and its offshootscritical race theory, critical feminism, and the like
would not be accepted. Alex Kozinski, Who Gives a Hoot about Legal
Scholarship? 37 Houston Law Review 295, 317 (2000). I share the perplexity
expressed by Professor David Dow about how we go about measuring such
acceptance. In any case, as Professor Dow reminds us, at least critical legal stud-
ies has had a profound impact in that it has taught us something about law,
and that is the measure of relevance. David R. Dow, The Relevance of Legal
Scholarship: Reections on Judge Kozinskis Musings, 37 Houston Law Re-
view 329, 337 n. 35 (2000).
20. Two intellectual movementscritical race theory and gay and lesbian
legal studiesare currently so closely allied with post-essentialist feminist writ-
ings that it is difcult to tell whether all three will eventually merge into a more
unied approach (such as anti-subordination theory) or will continue to develop
among more distinctive lines. Chamallas, note 3, at 135.
21. A number of papers and reports about gender mainstreaming are avail-
able at the Council of Europe Web site, http://www.coe.int.
22. Respectively, they are The Emergence of Feminist Jurisprudence, 95
Yale Law Journal 1373 (1986), and Feminist Legal Method: Not So Scary, 2
U.C.L.A. Womens Law Journal 1 (1992).
23. Richard Rorty, Pragmatism and Law: A Response to David Luban, in
Philosophy and Social Hope (New York: Penguin Books, 1999), at 112.
24. Claire LHeureax-Dub, The Importance of Dialogue: Globalization
and the International Impact of the Rehnquist Court, 34 Tulsa Law Journal 15
(1998). At the time she published this piece, Madame LHeureax-Dub was a
Justice of the Supreme Court of Canada. She is now retired.

notes to chapter 1

1. John Adams coined the phrase a government of laws, and not of men.
John Adams, Novanglus Papers, No. 7 (1774), in 4 Works of John Adams
(Charles Francis Adams, ed. 1851), at 106. For a range of contemporary com-
mentaries, see: George P. Fletcher, Basic Concepts of Legal Thought (1996), at
156 | Notes to Chapter 1

12 ([W]e are never quite sure what we mean by the rule of law. ); Ian Sha-
piro, ed., The Rule of Law: Nomos XXXVI (1994); Allan C. Hutchinson and
Patrick Monahan, eds., The Rule of Law: Ideal or Ideology (Toronto: Carswell,
1987); David Kairys, Searching for the Rule of Law, 36 Suffolk University
Law Review 307 (2003); Michael Rosenfeld, The Rule of Law and the Legiti-
macy of Constitutional Democracy, 74 Southern California Law Review 1307
(2001); Jessie Allen, Blind Faith and Reasonable Doubts: Investigating Belief in
the Rule of Law, 24 Seattle University Law Review 691 (2001); James W.
Torke, What Is This Thing Called the Rule of Law? 34 Indiana Law Journal
1445 (2001); William C. Whitford, The Rule of Law, 2000 Wisconsin Law
Review 723 (2000); Richard H. Fallon, Jr., The Rule of Law as a Concept in
Constitutional Discourse, 97 Columbia Law Review 1 (1997); Francis J.
Mootz, Is the Rule of Law Possible in a Postmodern World? 68 Washington
Law Review 249 (1993); Robert S. Summers, A Formal Theory of the Rule of
Law, 6 Ratio Juris 127 (1993); Margaret Jane Radin, Reconsidering the Rule
of Law, 60 Boston University Law Review 781 (1989); Joseph Raz, The Rule
of Law and Its Virtue, in The Authority of Law: Essays on Law and Morality
(New York: Oxford University Press, 1979), at 210.
2. United States v. Nixon, 418 U.S. 683 (1974) (President must comply with
subpoena issued in a criminal investigation) (Justice Rehnquist did not partici-
pate in the decision). The subpoena in question was for audiotapes that Presi-
dent Nixon made and maintained of conversations within the Oval Ofce. On
August 9, 1974, four days after release of transcripts of the tapes and sixteen
days after the decision of the Court, President Nixon resigned.
3. My research assistant queried the term rule of law in Westlaw as a self-
contained phrase, excluding serendipitous conjunctions of the words, in the
Clinton Impeachment Transcripts database. The term was counted when refer-
enced in the verbatim transcripts of the House of Representatives Judiciary
Committee Hearing, the House Floor Debate, and the Senate Impeachment
Hearings, and not in any other materials. Clinton Impeachment Transcripts,
www.westlaw.com.
4. U.S. Representative Henry Hyde (R-Illinois) Holds Hearings on Articles
of Impeachment of President Clinton, Hearing Before the House Comm. On
the Judiciary, 105th Cong. (1998) (opening statement of Stephen E. Buyer (R-
Indiana)).
5. House Floor Debate on the Four Articles of Impeachment Against Presi-
dent Clinton, 105th Cong. (1998) (statement of Representative Henry Hyde (R-
Illinois)); U.S. Senate Holds the Impeachment Trial of President Clinton, 105th
Cong. (1999) (statement of Representative Henry Hyde (R-Illinois)).
6. U.S. Senate Impeachment Trial of President Clinton, 105th Cong. (1999)
(statement of Gregory B. Craig, Ofce of the White House Counsel).
7. U.S. Senate Impeachment Trial of President Clinton, 105th Cong. (1999)
Notes to Chapter 1 | 157

(statement of Charles F. C. Ruff, Ofce of the White House Counsel); see also
U.S. Senate Impeachment Trial of President Clinton, 105th Cong. (1999) (state-
ment of David E. Kendall, Attorney for President Clinton): The rule of law is
more than rhetoric. It means that in proceedings like these, where important
rights are being adjudicated, that evidence matters. Fairness matters. Rules of
procedural regularity matter. The presumption of innocence matters. And pro-
portionality matters.
8. Thomas Carothers, The Rule of Law Revival, Foreign Affairs, March
April 1988, at 95.
9. Id. at 99.
10. Rosa Ehrenreich Brooks, The New Imperialism: Violence, Norms, and
the Rule of Law, 101 Michigan Law Review 2275, 2280 (2003): In an
increasing number of places, promoting the rule of law has become a fundamen-
tally imperialist enterprise. . . .
11. The State Department Web site features a publication in seven languages
called Principles of Democracy; among the fourteen principles described is
the Rule of Law, which means, in part, that no individual, president or private
citizen, stands above the law. Http://usinfo.state.gov/products/pubs/principles/
law.htm, visited September 28, 2004. On September 15, 2004, former Deputy
Secretary of State Richard Armitage told a gathering of Iraqi judges that de-
mocracy, justice, and the rule of law demand our fullest efforts. And I can prom-
ise you with a 100-percent certainty that President Bush is not going to rest until
this job [is] done. He is not going to rest until the Iraqi judges are seated on the
bench, making just and wise decisions for Iraqi people. Http://usinfo.state.gov/
mena/Archive/2004/Sep/15-65729.html, visited September 28, 2004. Fostering
the rule of law is ofcially part of the war on terror. National Strategy for Com-
bating Terrorism, February 2003, at 20, 23, http://www.whitehouse.gov/news/
releases/2003/02/counter_terrorism/counter_terrorism_strategy.pdf, visited Sep-
tember 28, 2004.
12. The White House, Humane Treatment of al Qaeda and Taliban Detain-
ees, February 7, 2002, http://usinfo.state.gov/xarchives/display.html?p=washle-
english&y=2004&m=June&x=20040623203050cpataruk0.1224024&t=live
feeds/wf-latest.html, visited September 28, 2004.
13. Article 15-6 Investigation of the 800th Military Police Brigade, March
2002, available at www.npr.org/iraq/2004/prison_abuse_report.pdf. The prison
abuse scandal is widening. As of fall 2004, there had been eight ofcial reports;
forty-three congressional briengs or hearings; and forty-ve individuals had
been referred for courts-martial. However, the Department of Defense contin-
ued to deny that any of its ofcials authorized or condoned the abuses. Depart-
ment of State, Defense Dept. Report, September 13: Prison Abuse Investiga-
tions, September 13, 2004, available at http://usinfo.state.gov/xarchives/display
.html?p=washle-english&y=2004&m=September, visited September 28, 2004.
158 | Notes to Chapter 1

14. Alberto R. Gonzales (now Attorney General of the United States), Deci-
sion re Application of the Geneva Convention on Prisoners of War to the Con-
ict with Al Qaeda and the Taliban, January 25, 2002, available at http://
msnbc.msn.com/id/499148/site/newsweek, visited September 28, 2004 (memo-
randum from White House Counsel urging the President to abide by his prelim-
inary decision not to apply the Geneva Conventions because it is difcult to
predict with condence what actions could be prosecuted as war crimes under
those conventions).
15. Investigative reporter Seymour Hersh uncovered much of the informa-
tion about the prison abuses and the intense discussion in 2002 among the
White House, Department of State, and Department of Defense about the limits
of legal restraint upon the war on terror. Seymour M. Hersh, Torture at Abu
Ghraib, New Yorker, May 10, 2004, at 42. In a recent book, Hersh claims that
high ofcers in the executive branch knew in January of 2004 of specic prison
abuses, and that a secret intelligence unit had participated in the abusive inter-
rogations. Seymour M. Hersh, Chain of Command: The Road from 9/11 to
Abu Ghraib (New York: Harper Collins, 2004).
16. Judith N. Shklar, Political Theory and the Rule of Law, in Hutchinson
and Monahan, note 1 at 1.
17. United States v. Nixon, 418 U.S. at 708. Consider also the possible
superuity of words in the decision of the California Supreme Court, holding
that the Mayor of San Francisco did not have the power to grant marriage
licenses to same-sex couples in the spring of 2004. [T]he legal question at issue
the scope of the authority entrusted to our public ofcials involves the
determination of a fundamental question that lies at the heart of our political
system: the role of the rule of law in a society that justly prides itself on being
a government of laws, and not of men (or women). Lockyer v. City and
County of San Francisco, 95 P. 3d 459, 463 (Cal. 2004) (citation omitted).
18. In response to a general desegregation order, Clark v. Thompson, 206 F.
Supp. 539 (S.D. Miss. 1962), the city of Jackson desegregated its public parks,
auditoriums, golf courses, and zoo but decided to close its ve public swimming
pools rather than desegregate them. Eventually, the United States Supreme
Court upheld that decision because there is no duty for a municipality to have
any swimming pools, and there was no state action involved in subsequent pri-
vate operation of those same pools. Palmer v. Thompson, 403 U.S. 217 (1971).
19. See Ann Scales, Surviving Legal De-Education: An Outsiders Guide,
15 Vermont Law Review 139 (1990).
20. Ann Scales, Midnight Train to Us, 75 Cornell Law Review 710 (1990).
21. This is not a point that I am actually willing to concede. Ann Scales,
Soft on Defense: The Failure to Confront Militarism, 20 Berkeley Journal of
Gender, Law and Justice 369 (2005).
22. Family violence is a context in ux. Limited corporeal punishment of
Notes to Chapter 1 | 159

children is still practiced with social approval in private, though it is no longer


thought appropriate in schools. Deana A. Pollard, Banning Corporal Punish-
ment: A Constitutional Analysis, 52 American University Law Review 447,
453 (2002). The use of force to control adult women in the domestic context is
nominally prohibited. For a provocative critique of laws responses to woman
battering, see G. Kristian Miccio, A House Divided: Mandatory Arrest, Do-
mestic Violence, and the Conservatization of the Battered Womens Move-
ment, 42 Houston Law Review 237 (2005).
23. Andrea Dworkinalways suspicious of law and lawyersonce asked
me why I had gone over. I told her that my heart needed for the world to change
in more immediate and more enforceable ways than observable from nonlegal
political activism. I told her that since my sophomore year in college, I had been
taken with Rousseaus question about whether anyone could force them to be
free. At this point, Andrea burst out: See! Books do ruin girls!
24. Consider the contrasting views of scientic progress held by Karl Popper
and Thomas Kuhn. Both were operating in a postfoundationalist world (see
chapter 2). Both accepted that even if the truth is out there, we will never have a
way of knowing whether we know it. Popper, however, described a relatively
smooth progression in science: what is called objectivity emerges from testing
ideas through intersubjective critique. Poppers wisdom is often encapsulated in
the admonition that we dont have to die with our ideas. We have to be able to
amend or let go of ideas that dont cut the critical mustard. Karl R. Popper, The
Logic of Scientic Discovery (New York: Basic Books, 1959). Kuhn had a more
staccato view of progress. Scientists operate within the paradigm of knowledge
in which they were trained. Normal science proceeds by solving puzzles iden-
tied by that paradigm as worthy and capable of investigation. Anomalies pile
up, however, and when the pile gets big enough, the paradigm itself comes into
question. In this period of incommensurability, competing paradigms can be
simultaneously operable and productive. The prior paradigm will yield what-
ever it can until it peters out. During all this, however, the adherents to com-
peting paradigms have no way of talking to one another. One cant see what
another sees, much less be available to persuasion. The old way of knowing dies
when its proponents die. Thomas S. Kuhn, The Structure of Scientic Revolu-
tions (Chicago: University of Chicago Press, 1962).
25. Judith Shklar, Legalism: Law, Morals and Political Trials, quoting R.
Lewis and A. Maude, Professional People (1952), at 208 (Cambridge: Harvard
University Press, 1964), at 14.
26. John Austin, The Province of Jurisprudence Determined (1832) (Noon-
day Press: New York, 1954), at 184.
27. Worcester v. Georgia, 31 U.S. 515 (1832), discussed in Stephen Breyer,
The Cherokees, The Supreme Court, and the Early History of American Con-
science, New Republic (August 7, 2000), at 32.
160 | Notes to Chapter 1

28. Cooper v. Aaron, 358 U.S. 1 (1958), discussed in Stephen Breyer, Cen-
tennial Address, 46 Syracuse Law Review 1179, 1182 (1996).
29. Bush v. Gore, 531 U.S. 98 (2000) (per curiam) (procedures ordered by
Florida court to govern partial recount of presidential election ballots violate
Equal Protection clause), discussed in Stephen Breyer, Commencement Re-
marks, University of Pennsylvania Law School, May 19, 2003, www.supreme
courtus.gov/publicinfo/speeches/sp_05-19-03.html, visited September 1, 2004.
30. Breyer, The Cherokees, note 27 at 39. In his dissent in Bush v. Gore,
Breyer called that case a self-inicted wound[ing] of public condence in the
Court, that public treasure which is a vitally necessary ingredient of . . . the
rule of law itself. 531 U.S. 98, 15758 (Breyer, J., dissenting). In his dissent,
Breyer refers to the Cherokee episode, adding that in spite of the harm done by
the majority opinion in Bush v. Gore, we have no risk of returning to the
days when Presidents would ignore orders of the Court. Id. at 158. Any con-
scientious citizen should wonder, I believe, about whether that is because Presi-
dents have (or any particular President has) allegiance to the rule of law or
because the rule of law serves as cover for the excessive exercise of executive
power.
31. Duncan Kennedy, A Critique of Adjudication {n de sicle} (Cambridge:
Harvard University Press, 1997), at 14.
32. Id. at 237. See also Morton J. Horwitz, The Rule of Law: An Unquali-
ed Human Good? 86 Yale Law Journal 561 (1977). As Professor David
Kairys argues, courts have more often been a barrier to human rights than a
means for their realization. Kairys, note 1 at 307, 32324 (2003).
33. A. V. Dicey, Introduction to the Study of the Law of the Constitution
(1885) (8th ed., London: Macmillan, 1924).
34. Fallon, note 1, at 9 (the law must have guidance capability, efcacy, sta-
bility, supremacy, and instrumentalities of impartial dispute resolution).
35. Kairys, note 1, at 12 14. In surveying a vast rule of law literature,
Professor Kairys identied fourteen overlapping themes: certain relationships
should be governed by rules; rules should be accessible; rules should be gener-
ally applicable; rules laid down should be followed; procedures for administra-
tion of law should be fair; rules should be enacted by established processes;
processes should be democratic; some concept of justice should be at play; there
should be certain basic rules or rights; rules should limit government as well
as individuals; decision making by judges should be publicly available; there
should be judicial review of actions of other branches of government; there
should be reasons for judicial decisions; and, the rule of law is part of a larger
political and social system.
36. The question of what the law could have done to prevent or defuse the
Third Reich was the topic of the most famous academic exchange to date in
Notes to Chapter 1 | 161

U.S. legal history: the Hart-Fuller debate. H. L. A. Hart, Positivism and the
Separation of Law and Morals, 71 Harvard Law Review 593 (1958); Lon L.
Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harvard
Law Review 630 (1958).
37. Lon L. Fuller, The Morality of Law (New Haven: Yale University Press,
1964).
38. David Kairys notes that rule of law scholars, including Fuller, do not
ordinarily even mention the importance of corporate/commercial accountability
to law. Our national political consciousness seems at once to embrace the idea
of restraints on government, while simultaneously accepting the systematic re-
moval of legal restraints on corporations and businesses. Kairys, note 1 at 313.
Concern about state institutions (such as law) as cover for capitalist hegemony
is a main theme of Michael Hardt and Antonio Negri, Empire (Cambridge:
Harvard University Press, 2000). Whereas the Clintonian mantra was that the
era of big government is over, the empire theorists say that the era of any gov-
ernment is over. The logic of state sovereignty maintains its hold by playing on
the anxieties of the people but is ultimately a smokescreen for boundary-blur-
ring imperial private capital. Id. at 74. Postmodern and postcolonial theories are
in a sense the supporting doctrines of imperial capitalism, which was already
doing away with modern forms of sovereignty and setting differences to play
across boundaries. Id. at 142, 150.
39. In a devastating example of the evil of retroactivity, Fuller refers to Hit-
lers Roehm Purge of 1934. Having ordered the killing of more than one hun-
dred political enemies, Hitler subsequently arranged for the passage of a statute
declaring those to have been lawful criminal executions. Fuller, Morality of
Law, note 37 at 54.
40. Id. at 6566.
41. Id. at 8291.
42. Fuller noted that due process captures what he called his procedural
version of natural law. Id. at 103.
43. L. L. Fuller and William R. Perdue, Jr., The Reliance Interest in Con-
tract Damages: 1, 46 Yale Law Journal 52 (193637) (emphasis in original).
44. Fuller, Morality of Law, note 37 at 4.
45. 530 U.S. 703 (2000), reviewing Colorado Revised Statute 18-9-122
(2002), which forbids a person to knowingly approach another person within
eight feet of such person, unless such other person consents, for the purpose of
passing a leaet or handbill to, displaying a sign to, or engaging in oral protest,
education, or counseling with such other person in the public way or sidewalk
area within a radius of one hundred feet from any entrance door to a health
care facility.
46. 530 U.S. at 723.
162 | Notes to Chapter 1

47. Alan K. Chen, Statutory Speech Bubbles, First Amendment Over-


breadth, and Improper Legislative Purpose, 38 Harvard Civil Rights Civil
Liberties Law Review 31, 5053 (2003) (analyzing state legislative record).
48. Criticism from the civil libertarian side includes William E. Lee, The
Unwilling Listener: Hill v. Colorados Chilling Effect on Unorthodox Speech,
35 University of California at Davis Law Review 387 (2002); Kathleen M. Sul-
livan, Sex, Money, and Groups: Free Speech and Association Decisions in the
October 1999 Term, 28 Pepperdine Law Review 723 (2001); Colloquium,
Professor Michael W. McConnells Response, 28 Pepperdine Law Review 747,
750 (2001) (quoting Professor Laurence Tribe as calling Hill slam dunk simple
and slam dunk wrong). From the right wing, the most virulent criticism is
from a Canadian lawyer. Charles Lugosi, The Law of the Sacred Cow: Sacric-
ing the First Amendment to Defend Abortion on Demand, 79 Denver Univer-
sity Law Review 91, 93, 123 (2001) (referring to bubble laws as a new form of
Iron Curtain and blaming feminists).
49. 530 U.S. at 741.
50. The leading Canadian case is from the Supreme Court of British Colum-
bia. R. v. Lewis, 24 B.C.L.R. (3d) 247, [1997] 1 W.W.R. 496, 39 C.R.R. (2d)
26, 130 D.L.R. (4th) 480. The court took to heart evidence of how antiabortion
organizations have succeeded through violence and intimidation to make abor-
tion unavailable or to discourage women in need from seeking it. Id. at 44
46, 84, 9798.

notes to chapter 2

1. Lochner v. New York, 198 U.S. 45, 7576 (1905) (Holmes, J. dissenting).
2. Atkins v. Virginia, 536 U.S. 304 (2002), overruling Penry v. Lynaugh, 492
U.S. 302 (1989).
3. 536 U.S. at 338, 348.
4. Roper v. Simmons, 125 S. Ct. 1183 (2005), abrogating Stanford v. Ken-
tucky, 492 U.S. 361 (1989).
5. 125 S. Ct. at 1217. In Roper as in other cases, Justice Scalia is critical of
the majoritys reliance on authorities from other countries.
6. 125 S. Ct. at 122930 (emphasis in original).
7. Robin West, Re-Imagining Justice, 14 Yale Journal of Law and Femi-
nism 333 (2002).
8. We remain participants in a familiar morality play in which the question
is whether the judges personal ideology or partisan politics will overcome
their oaths to interpret the law rather than overthrow it. Duncan Kennedy, A
Critique of Adjudication {n de sicle} (Cambridge: Harvard University Press,
1997), at 81.
9. A fabulous articulation of the strategy of making ones opponents feel stu-
Notes to Chapter 2 | 163

pid and crazy is Andrea Dworkin, The Politics of Intelligence, in Right-Wing


Women (New York: Perigee Books, 1983), at 3769.
10. 389 U.S. 347 (1967).
11. Id. at 364.
12. Id. at 373.
13. John W. Wright, ed., The New York Times Almanac (New York: Pen-
guin Books, 2004), at 75758. In addition to protons, neutrons, and electrons,
my roller skates are comprised of muons, pions, neutrinos, quarks (six different
kinds of these), gluons, J/psi particles, W and Z particles, strange particles, and
antiatoms. The list sounds like the creation of Jorge Luis Borges, made most
famous by Foucault: This passage quotes a certain Chinese encyclopedia in
which it is written that animals are divided into: (a) belonging to the Emperor,
(b) embalmed, (c) tame, (d) suckling pigs, (e) sirens, (f) fabulous, (g) stray dogs,
(h) included in the present classication, (i) frenzied, (j) innumerable, (k) drawn
with a very ne camelhair brush, (l) et cetera, (m) having just broken the water
pitcher, (n) that from a long way off look like ies. Michel Foucault, The
Order of Things XV (New York: Pantheon Books, 1971).
14. W. B. Gallie, Essentially Contested Concepts, Aristotelian Society Pro-
ceedings, n.s 56 (195556), 167, 169.
15. Of course there already are such sports, such as boxing and gure skat-
ing, where those in control of the sport have superimposed systems of scoring
upon what are otherwise often nonquantitative judgments about the quality of
play. For my expanded take on the role of sports metaphors in law, see Ann
Scales, Surviving Legal De-Education: An Outsiders Guide, 15 Vermont Law
Review 139 (1990).
16. Gallie, note 14, at 17071 (emphasis in original).
17. [T]he notion of possible ultimate universal agreement is a highly so-
phisticated one and does not gure among the familiarly recognized criteria for
rational justication. Id. at 18889.
18. Id. at 193.
19. This part of the story is fascinating to me. As a student, when reading
the work of some philosophers, I found myself wondering, if hes right, why
bother writing it down? If this account is necessarily the way the world is or
necessarily the way history will play out, why the need to memorialize it or per-
suade anybody? Of course, there could be millions of Pyrrhos in world history:
brilliant thinkers or shamans who really did have the answer and didnt write
it down or even drop a hint to anyone. Just as likely, of course, is that there
have been millions of brilliant thinkers who had a lot to contribute but were
voiceless by virtue of their social position. See Virginia Woolf, A Room of Ones
Own (New York: Harcourt, Brace and World, 1929), at 4353 (hypothesizing
Shakespeares sister and her struggles).
20. Myles F. Burnyeat, Can the Skeptic Live His Skepticism? in Myles F.
164 | Notes to Chapter 2

Burnyeat, ed., The Skeptical Tradition (Berkeley: University of California Press,


1983), at 140.
21. In light of the variousness of postmodernist thought, it is difcult to
dene it or to point the reader to concise expositions of it. Among the best is
Jean-Franois Lyotard, The Postmodern Condition: A Report on Knowledge,
Geoff Bennington and Brian Massumi, trans. (Minneapolis: University of Min-
nesota Press, 1984), at xxiv (I dene postmodernism as incredulity toward
metanarratives.).
22. For example, in the case that invalidated the Indianapolis version of the
MacKinnon-Dworkin pornography civil rights ordinance, Judge Easterbrook
stated: This is thought control. It establishes an approved view of women, of
how they may react to sexual encounters, of how the sexes may relate to each
other. Those who espouse the approved view may use sexual images; those who
do not, may not. American Booksellers Association, Inc. v. Hudnut, 771 F.2d
323, 328 (7th Cir. 1985), affd without opinion, 475 U.S. 1001 (1986).
23. See Manfred Frank, What Is Neostructuralism?, Sabine Wilke and
Richard Gray, trans. (Minneapolis: University of Minnesota Press, 1989).
24. Professor MacKinnon has described postmodernism as familiar if
fancier reasons for doing nothing. Catharine A. MacKinnon, Points Against
Postmodernism, 75 Chicago-Kent Law Review 687, 710 (2000). She recalls
the epigraph of this chapter, id. at 704, quoting Gertrude Stein, Brewsie and
Willie (New York: Random House, 1946), at 30, for the proposition that many
of the insights of postmodernism are old stuff. It is unsurprising to nd Mac-
Kinnon on that side of the debate, as one salient dispute among postmodern
and non-postmodern feminists has been pornography. Antipornography femi-
nists such as MacKinnon believe that pornography can be dened and resisted,
but only if understood as deeply gendered and an arm of gender oppression.
Postmodernist feminists believe that the notion of gender itself emerges from the
order of discourse, so that it is regressive to participate in the modernist projec-
tion of gender of which pornography is an expression. Rather, our aim should
be to subvert every expression of gender by safeguard[ing] the uncontrollabil-
ity of the signied. Judith Butler, The Force of Fantasy: Feminism, Map-
plethorpe, and Discursive Excess, reprinted in Drucilla Cornell, ed., Feminism
and Pornography (Oxford: Oxford University Press, 2000), at 504. Perhaps
that means that pro-sex women should become creators of sexually explicit
imagery ourselves and therefore somehow displace or undermine the power of
pornographers to construct women, sexuality, and gender. Im not sure what it
means the law should do, if anything.
25. Thus, I believe Duncan Kennedy overstates the case when he describes
the birth of the virus of skepticism in law. Kennedy, note 8 at 81. It is an
interesting metaphor because bodies do ght viruses, and it is true that doubt
can be debilitating in excess. However, I am of the opinion that all good-faith
Notes to Chapter 3 | 165

discourse involves constant recalibration of the tension between certainty and


doubt, and that lawyers, in particular, are obligated to be aware of that proc-
ess. To me, that is what distinguishes the good-faith actors from the bad-faith
actors.
26. The most inuential work is H. L. A. Hart, The Concept of Law (New
York: Oxford University Press, 1961).
27. H. L. A. Hart, Positivism and the Separation of Law and Morals, 71
Harvard Law Review 593, 596 (1958).
28. Kennedy, note 8 at 97.
29. Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard Univer-
sity Press, 1977).
30. Many ne pieces are collected in Michael Brint and William Weaver,
eds., Pragmatism in Law and Society (Boulder: Westview Press, 1991).
31. The author of modern skepticism, David Hume, was rm in his belief
that skepticism could not form the basis of daily life:
When [the skeptic] awakes from his dream, he will be the rst to join in
the laugh against himself, and to confess, that all his objections are mere
amusement, and can have no other tendency than to show the whimsical
condition of mankind, who must act and reason and believe; though they
are not able, by their most diligent enquiry, to satisfy themselves concern-
ing the foundation of these operations, or to remove the objections, which
may be raised against them.
David Hume, An Enquiry Concerning Human Understanding (1748) (Chicago:
Open Court Publishers, 1927), at 17071.
32. Richard Rorty, Philosophy and Social Hope (New York: Penguin Books,
1999), at 18.
33. Id. at xxix.
34. Richard Rorty, Contingency, Irony, and Solidarity (New York: Cam-
bridge University Press, 1989).
35. Note 19.
36. See Christine Swanton, Virtue Ethics: A Pluralistic View (New York:
Oxford University Press, 2003); Rosalind Hursthouse, On Virtue Ethics (Ox-
ford: Oxford University Press, 1999); Roger Crisp and Michael Slote, eds.,
Virtue Ethics (New York: Oxford University Press, 1997).

notes to chapter 3

1. 486 F. 2d 1139 (D.C. Cir. 1973) (en banc), cert. denied 414 U.S. 980
(1973). For an intellectual history of the assumption of freedom in law, see
Ronald J. Rychlak and Joseph F. Rychlak, Mental Health Experts on Trial:
Free Will and Determinism in the Courtroom, 100 West Virginia Law Review
193 (1997).
166 | Notes to Chapter 3

2. In the juvenile death penalty case, amici submitted new scientic evidence
about the neurological immaturity of teenage brains and the probable connec-
tions among those characteristics and poor decision making. See Brief Amicus
Curiae of the American Medical Association, et al., 2004 WL 1633549 (2004).
In vacating the death sentence, the Court relied on that evidence to some extent.
Roper v. Simmons, 125 S. Ct.1183, 1195 (2005). Unsurprisinglyat least as of
nowneither the scientists nor the Court postulated any precise connections
between that evidence and the moral culpability of the teenage defendants.
3. See Matthew Jones, Overcoming the Myth of Free Will in Criminal Law:
The True Impact of the Genetic Revolution, 52 Duke Law Journal 1031
(2003).
4. One author estimates that 60 percent of child custody determinations, for
example, violate the First Amendment in the ways that they take or do not take
a prospective custodial parents religion into account. Jennifer Ann Drobac,
For the Sake of the Children: Court Consideration of Religion in Child Cus-
tody Cases, 50 Stanford Law Review 1609 (1988).
5. McCreary County, Kentucky v. American Civil Liberties Union of Ken-
tucky, 125 S. Ct. 2722 (2005).
6. Van Orden v. Perry, 125 S. Ct. 2854 (2005). Only four Justices agreed on
the reasoning for allowing Texas the monument. Justice Stephen Breyer merely
agreed with the result in the Texas case. Indeed, Breyers was the deciding vote
in both cases. For him, the dispositive different fact seemed to be public acqui-
escence. In Kentucky, the counties kept changing the format for the religious
display, which had been hanging on the walls for roughly nine months. 125
S. Ct. at 2758. In the Texas case, the monolith had been on the capital grounds
for forty years before anyone objected. 125 S. Ct. at 2870.
7. Zorach v. Clauson, 343 U.S. 306, 313 (1952) (permitting students to
leave public school for purpose of religious education), repeated with approval
in Van Orden v. Perry, 125 S. Ct. at 2859, n. 2; Lynch v. Donnelly, 465 U.S.
668, 675 (1984) (upholding a public Christmas display including a crche);
Marsh v. Chambers, 463 U.S. 783, 792 (1983) (upholding prayer in a state leg-
islature); School District of Abingdon Township v. Schempp, 374 U.S. 203, 213
(1963) (invalidating Bible reading and recitation of Lords Prayer in public
schools); McCreary County v. A.C.L.U., 125 S. Ct. at 2750 (Scalia, dissenting).
8. Van Orden v. Perry, 125 S. Ct. at 2869 (Breyer, concurring).
9. Scalia says 97.7 percent of the U.S. faithful are monotheists. McCreary
County, 125 S. Ct. at 2753 (Scalia, dissenting). While arguing that such num-
bers are entirely irrelevant to the meaning of the Establishment Clause, Stevens
notes that of that 97.7 percent, 95.5 percent are Christian. The number of Bud-
dhists (whom Stevens describes as nontheistic) in the United States is nearly
equal to the number of Muslims. Van Orden, 125 S. Ct. at 2881, n. 18 (Stevens,
dissenting).
Notes to Chapter 3 | 167

10. Many of the founding fathers (including Benjamin Franklin, George


Washington, Thomas Jefferson, Thomas Paine, and James Madison) followed
the theology of Deism. Eighteenth-century Deists believed in divine reason
which some termed Godas the ultimate cause of the universe. Deists re-
jected most tenets of Christianity, including the notion that God intervened in
history, and some Deists regarded monotheistic divinities as myths. See Peter
Occhiogrosso, The Joy of Sects: A Spirited Guide to the Worlds Religious Tra-
ditions (New York: Doubleday, 1996).
11. The government has a hard time making this distinction, and generally a
hard time distinguishing the Iraq and Afghanistan wars from the Crusades. The
task is not made easier by loose cannons. As disclosed in the fall of 2003, Army
Lt. General William Boykin attended at least twenty-three church meetings and
prayer breakfastsusually wearing his uniformwhere he portrayed U.S. bat-
tles with Muslim radicals as a ght against Satan. He stated that militant
Islamists sought to destroy the United States because were a Christian na-
tion. In a classic among Freudian outbursts, General Boykin referred to a Mus-
lim ghter in Somalia, stating, [M]y God was bigger than his. I knew that my
God was a real God, and his was an idol. Reuters, Rumsfeld Praises Army
General Who Ridicules Islam as Satan, New York Times, October 17, 2003,
at A7. Though the Inspector General of the Department of Defense recom-
mended in August 2004 that the Army take appropriate corrective action
with respect to General Boykin, he continues in his post as Deputy Under Secre-
tary of Defense for Intelligence. Editorial, Words of War, Boston Globe, July
24, 2005, at D10.
12. Ballard v. United States, 322 U.S. 78, 95 (1944) (Jackson, dissenting) (case
regarding mail fraud allegedly committed by founders of I Am movement).
13. United States v. Seeger, 380 U.S. 163,176 (1965). This rule takes a con-
testable point of view about the grand design of the universe. Though the rule
exempts some pacists who are not identied with any organized religion, it
may not exempt nonviolent postmodernists, or others who reject logocen-
trism in spiritual matters.
14. Dalia Martinez, Say Amen, Boss! Newsweek, August 25, 3003, com-
menting on the Employment Equality (Religion or Belief) Regulations, adopted
in 2003 to give effect to the European Community Equal Treatment Framework
Directive (No. 2000/78).
15. Eve Kosofsky Sedgwick, Epistemology of the Closet (Berkeley: Univer-
sity of California Press, 1990), at 4.
16. Rachel Carson was one of the rst to explain the cumulative nature of
the thousands of toxic exposures that we absorb every day: Like the constant
dripping of water that in turn wears away the hardest stone, this birth-to-death
contact with dangerous chemicals may in the end prove disastrous. Rachel
Carson, Silent Spring (Boston: Houghton Mifin, 1962), at 173174.
168 | Notes to Chapter 3

17. Only eleven days after the attacks, Congress passed the Victims Com-
pensation Act, a scheme to benet the persons and the families of persons on
the ground at the attack sites, or in the planes used as weapons. The Air Trans-
portation Safety and System Stabilization Act, 49 U.S.C. 40101, Title IV Vic-
tim Compensation, 408(b)(3), Pub. L. No. 107-71, 201, 115 Stat. 230, 40
(September 22, 2001), as amended by Pub. L. No. 107-71, 201, 115 Stat.
597, 645 (November 19, 2001). However, the Victims Compensation Act did
not cover property owners, those physically injured but not on site, and, per-
haps most interestingly, the mere exposure claimants. That is, although thou-
sands of people were killed or physically injured on September 11, there are
possibly hundreds of thousands of others who may not yet know of their in-
juries due to the unprecedented mixture and intensity of toxins released that
day. See Robert L. Radin, Indeterminate Future Harm in the Context of Sep-
tember 11, 88 Virginia Law Review 1831, 1843 (2002).
18. Mario Bunge, Causality and Modern Science (New York: Dover Publica-
tions, 3rd ed. 1959), at xviii (describing difference between epistemological and
ontological aspects of causal problems in scientic research). Specically regard-
ing the confusion of ontology and epistemology in toxic tort cases, see Danielle
Conway-Jones, Factual Causation in Toxic Tort Litigation: A Philosophical
View of Proof and Uncertainty in Uncertain Disciplines, 35 University of Rich-
mond Law Review 875 (2002).
19. Most toxic tort claims end up in federal court because of the diversity
of citizenship of injured plaintiffs and corporate defendants, and in the federal
courts, the federal rules of evidence apply regardless of the substantive law gov-
erning the underlying claims.
20. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 59091
(1993) (emphasis added). There are many excellent commentaries on the effects
of the Daubert ruling. Among my favorites is Lucinda M. Finley, Guarding the
Gate to the Courthouse: How Trial Judges Are Using Their Evidentiary Screen-
ing Role to Remake Tort Causation Rules, 49 DePaul Law Review 335
(1999). Daubert itself involved Bendectin, an anti-morning-sickness medication
taken by thirty million pregnant women over the course of twenty-seven years.
Bendectin has been associated with various severe birth defects. In the post-
Daubert regime, none of the jury verdicts in plaintiffs favor have been left
standing. Compare Joseph Sanders, The Bendectin Litigation: A Case Study in
the Life Cycle of Mass Torts, 43 Hastings Law Journal 301, 35562, nn. 227
232 (1992) with Raynor v. Merrell Pharmaceuticals, Inc., 104 F.3d 1371 (D.C.
Cir. 1997) (afrming judgment for defendant nothwithstanding the jurys ver-
dict in favor of plaintiff); Merrell Dow Pharmaceuticals, Inc. v. Havner, 706
S.W. 2d 706 (Tex. 1997) (vacating jury verdict); and Oxendine v. Merrell Dow
Pharamaceuticals, Inc., 1996 WL 680992 (D.C. Super. 1996). The last of these
Notes to Chapter 3 | 169

provided relief to Merrell, after four appeals, from the jury verdict rendered
against it thirteen years earlier.
21. Among federal courts adhering to the rigid causal regime, see Cano v.
Everest Minerals Corp., 362 F.Supp. 2d 814, 824 (W.D. Tex. 2005) (victims of
various cancers allegedly caused by uranium tailings must show sufcient epi-
demiological connection on issue of specic causation); Saldo v. Sandoz Phar-
maceuticals Corp., 244 F. Supp. 2d 434 (W.D. Pa. 2003) (insufcient epidemio-
logical evidence to connect antilactation drug Parlodel to stroke); Hollander v.
Sandoz Pharmaceutical Corp., 95 F. Supp. 2d 1230 (W.D. Okla. 2000) (same);
Blanchard v. Eli Lilly & Co., 207 F. Supp. 2d 308 (D. Vt. 2002) (insufcient
epidemiological connection between antidepressant Prozac and risk of murder/
suicide); Forsyth v. Eli Lilly Co., No. 95-00185, 1998 U.S. Dist. Lexis 541 (D.
Haw. 1998) (Prozac and risk of suicide); Miller v. Pzer Inc., 196 F. Supp. 2d
1095 (D. Kan. 2002) (insufcient epidemiological evidence regarding antide-
pressant Zoloft and risk of suicide); In re Breast Implant Litigation, 11 F. Supp.
2d 1217 (D. Colo. 1998) (no further scientic evidence admissible, given epi-
demiological study indicating relative risk between silicone implants and associ-
ated autoimmune diseases of 1.24); Schudel v. General Electric, 120 F. 3d.
991 (9th Cir. 1997) (insufcient epidemiological evidence to connect industrial
solvents trichoroethane [TCA] and percholoroehylene [perc] to neurological and
respiratory illnesses); In re Agent Orange Product Liability Litigation, 611 F.
Supp. 1223 (E.D.N.Y. 1985) (granting summary judgment to defendants in
claims of opt-out veterans), affd 818 F.2d 187 (2d Cir. 1987).
The few exceptions among federal courts, those rejecting the rigid epidemio-
logical scheme, are In re Hanford Nuclear Reservation Litigation, 292 F.3d 1124
(9th Cir. 2002); In re Silicone Breast Implants Products Liability Litigation,
318 F. Supp. 2d 879 (C.D. Cal. 2004) (relative risk must be greater than 1 for
general causation; must be greater than 2 for specic causation); Benedi
v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995) (no epidemiological evi-
dence required where there is other expert testimony on the relationship between
acetaminophen and liver disease); Smith v. Wyeth-Ayerst Laboratories Co., 278
F.Supp. 2d 684 (W.D.N.C. 2003) (in case involving primary pulmonary hyper-
tension caused by diet drug Fen-Phen, epidemiological evidence required only
because other experts relied on it in arriving at differential diagnosis).
Some state courts have taken exible approaches similar to that taken by the
Ninth and Fourth Circuits. Vassallo v. Baxter Healthcare Corp., 696 N.E. 2d
909 (Mass. Sup. Ct. 1998); Jennings v. Baxter Healthcare Corp., 954 P.2d 829
(Or. App. 1998); Bloomquist v. Wapello County, 500 N.W. 2d 1 (Iowa 1993);
Landrigan v. Celotex Corp., 605 A. 2d 1079 (N.J. 1992).
22. David Hume, An Enquiry Concerning Human Understanding (1748)
(Chicago: Open Court Publishers, 1927).
170 | Notes to Chapter 3

23. Tim Folger, Nailing Down Gravity: New Ideas About the Most Myste-
rious Power in the Universe, Discover, October 2003, at 34 (describing anom-
alies presently explained by hypothetical dark matter).
24. Cay v. State of Louisiana Dept. of Transportation and Development,
631 So. 2d 393 (La. 1994) (afrming bench trial judgment for plaintiffs but
reapportioning only 10 percent of responsibility to the Department of Trans-
portation and 90 percent to the decedent). If one needed conrmation of the
laws facility (not usually acknowledged) with causal slippage, one need only
look at the degree to which law allows comparative fault schemes to fudge the
questions, without precisely identifying what questions are being fudged.
25. In many respects, this proof pattern was invented by Judge Jack Wein-
stein, in his handling of the original Agent Orange cases in the 1980s. Though
he had approved a settlement between the class of Vietnam veterans and the
manufacturers of Agent Orange, In re Agent Orange Product Liability Litiga-
tion, 597 F. Supp. 740 (E.D.N.Y. 1984), Weinstein disallowed individual Viet-
nam veteran plaintiffs from presenting any proof of what actually happened to
them, based in large part on an epidemiological study published by the Air
Force in 1984 that showed that there was no connection between Agent Orange
and the vast range of diseases suffered by exposed veterans. In re Agent Orange
Product Liability Litigation, 611 F. Supp. 1223 (E.D.N.Y. 1985) (granting sum-
mary judgment to defendants in cases of opt-out veterans), affd 818 F.2d
187 (2d Cir.1985) (on basis of government contractor defense). Judge Weinstein
may not have intended for his privileging of epidemiological proof to be so
inuential, but it has been. See Jack B. Weinstein, Individual Justice in Mass
Tort Litigation (Evanston: Northwestern University Press, 1995).
26. The signature disease is a useful legal ction. It is not true, for ex-
ample, that clear cell adenocarcinoma (CCA) occurs only in premenopausal
women exposed to DES. The fact that DES daughters are forty times more
likely than others to develop CCA, however, is enough for scientists presump-
tively to discount other causes. See Known Health Effects for DES Daughters,
Centers for Disease Control, http://www.cdc.gov/DES/consumers/about/effects_
daughters.html, visited November 3, 2003.
27. For a judicial explanation of the results of epidemiological studies, see
DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 94548 (3rd Cir.
1990).
28. See www.cancerprev.org/Journal/Issues/22/101/22/2627 (relative risk of
4 for breast cancer); http://cnts.wpi.edu/rRSH/Data_docs/1/2/1/1/12115ber5
.html (relative risk of 2.09 for stomach cancer); http://cnts.wpi.edu/rsh/docs/
MinelR10-JpSurvMort.pdf (other cancers widely known to have been caused by
the bombs show relative risk of less than 2), sites visited October 18, 2004.
29. Reliable evidence of increased risk is admissible on the element of causa-
tion. See Reynolds v. The Texas and Pacic Railway Company, 37 La. Ann.
Notes to Chapter 3 | 171

694, 1885 WL 6364 (La. 1885) (judgment for plaintiff who fell down unlighted
staircase afrmed where defendants negligence increased the chances of acci-
dent).
30. In re Breast Implant Litigation, 11 F. Supp. 2d 1217, 1225 26 (D.
Colo. 1998).
31. Sander Greenland, The Need for Critical Appraisal of Expert Witnesses
in Epidemiology and Statistics, 39 Wake Forest Law Review 291, 304 (2004).
32. David Egilman, M.D., M.P.H., Joyce Kim, and Molly Biklen, Proving
Causation: The Use and Abuse of Medical and Scientic Evidence Inside the
CourtroomAn Epidemiologists Critique of the Judicial Interpretation of the
Daubert Ruling, 58 Food and Drug Law Journal 223, 227 (2003).
33. Marcia Angell, Science on Trial: The Clash of Medical Evidence and the
Law in the Breast Implant Case (New York: W. W. Norton, 1996), at 196
(quoted in In re Breast Implant Litigation, 11 F. Supp. 2d at 1226). The study
at issue was Charles H. Hennekens et al., Self-reported Breast Implants and
Connective-Tissue Diseases in Female Health Professionals, 275 Journal of the
American Medical Association 616, 618 (1996). Dr. Angells interpretation and
the misjudgment by the Colorado federal court are discussed in Finley, note 20
at 35960.
34. This is true even when there is not any epidemiology on a toxin, or
where the epidemiology is very preliminary. Sutera v. Perrier Group of America,
Inc., 986 F.Supp. 655 (D. Mass. 1997)(expert testimony disallowed where there
had been no epidemiologic study addressing association of benzene with acute
promyelocytic leukemia at plaintiffs dose); Finley, note 19 at 352.
35. Finley, note 20 at 364 65; Sanders, note 20 at 343. Epidemiologist
Sander Greenland calls this privileging the null hypothesis. Greenland, note
31 at 296. Professor Greenland opines that this position, clinging to the pre-
sumption of no association, is discredited in philosophy, health sciences, and
statistics. Moreover, he says, when experts present a court with that position,
they encourage multiple distortions in both science and social policy. Id.
36. Bert Black and David L. Lilienfeld, Epidemiologic Proof in Toxic Tort
Litigation, 52 Fordham Law Review 732 (1984).
37. Among the best-known of these works are H. L. A. Hart and Tony Hon-
or, Causation in the Law (1959) (Oxford: Clarendon Press, 2d ed. 1985);
Richard W. Wright, Causation, Responsibility, Risk, Probability, Naked Statis-
tics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts, 73 Iowa
Law Review 1001 (1988); Mark Kelman, The Necessary Myth of Objective
Causation Judgments in Liberal Political Theory, 63 Chicago-Kent Law Re-
view 579 (1987); Richard W. Wright, Causation in Tort Law, 73 California
Law Review 1735 (1985); John Borgo, Causal Paradigms in Tort Law, 8
Journal of Legal Studies 419 (1979).
38. Austin Bradford Hill, The Environment and Disease: Association or
172 | Notes to Chapter 3

Causation? 58 Proceedings of the Royal Society of Medicine 295 (1965). Pro-


fessor Bradford Hills article is a salient example of the inuence of Bayesian
epistemology on twentieth-century science. Named for an eighteenth-century
cleric, Thomas Bayes, the central insight of the Bayesian analysis is that a
hypothesis tends to be conrmed by any body of data that renders its truth
probable. See Rudolf Carnap, Logical Foundations of Probability (Chicago:
University of Chicago Press, 1962).
39. After a study by Merck showed an association between its blockbuster
arthritis drug Vioxx and heart attack and stroke, the company withdrew the
drug from the market. The president of Merck Research Labs said, We cer-
tainly dont understand the cause of this effect, but it is statistically signicant
and it indicated there is an issue. Gina Kolata, A Widely Used Arthritis Drug
is Withdrawn, New York Times, October 1, 2004.
40. Sanders, note 20 at 330; Margaret A. Berger, Eliminating General Cau-
sation: Notes Toward a New Theory of Justice and Toxic Torts, 97 Columbia
Law Review 2117 (1997).
41. Bradford Hill, note 38, at 299.
42. The defense bar has done this in two ways. First, instead of being over-
lapping considerations, the points of view have become criteria, a nine-part
test for causation. Second, they have been added to the silly epidemiological test
(rather than displacing it), something the plaintiffs experts must explain after
epidemiological evidence showing a relative risk of at least 2 has been found
admissible. Thus, in cases where courts are willing to consider the Bradford Hill
points of view, they dont really need to because theyve already been persuaded
by epidemiological evidence. See In re Phenylpropanolamine (PPA) Product
Liability Litigation, 289 F.Supp. 2d 1230, 1243 n. 13 (W.D. Wash. 2003) (nd-
ing discussion of Bradford Hill criteria neither necessary or helpful where epi-
demiology had shown relative risk of hemorrhagic stroke from over-the-counter
diet drug and cough/cold ingredient PPA to be 16.58); Smith v. Wyeth-Ayerst
Laboratories Co., 278 F. Supp. 2d 684, 691, 69394 (W.D.N.C. 2003) (regard-
ing relationship between diet drug Fen-Phen and primary pulmonary hyperten-
sion, epidemiology showing increased risk of 630 percent is consistent with
Bradford Hill factors).
43. Dunn v. Sandoz Pharmaceuticals Corp., 275 F. Supp. 2d 672, 678
(M.D.N.C. 2003).
44. Id. at 67980. The district court was attempting to conform with the
somewhat less strenuous causal regime in the Fourth Circuit, mentioned in note
20, but succeeded primarily in showing the emptiness of the familiar incantation
that plaintiffs are not required to produce epidemiological evidence.
45. The Victims Compensation Act for those injured on September 11,
2001, is only one example of congressional action to supplant common law tort
remedies for mass injuries, and each effort has had its own features, more or
Notes to Chapter 3 | 173

less suited to the situations at hand. See, for example, Black Lung Benets Act
of 1969, 30 U.S.C. 90145, providing benets for coal miners affected by
pneumoconiosis and limiting liability of mining companies; National Vaccine
Injury Compensation Program of 1986, 42 U.S.C. 300aa1-034; National
Swine Flu Immunization Program of 1976, 42 U.S.C. 247(j)(k); Price-Ander-
son Act of 1957, 42 U.S.C. 2210, providing immunity for actions arising from
nuclear energy accidents while providing health benets for nuclear workers;
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, 42 U.S.C. 960175, as amended, providing limited compensation for
downwinders, persons affected by above-ground nuclear testing in Nevada;
and the Veterans Administration, 5 U.S.C. 2108, which has existed in some
form since colonial times to provide health benets to military veterans based
on service relatedness of health conditions.
46. Testing delays entry into the market; testing is expensive; in most situa-
tions manufacturers need not worry about it because subsequently injured con-
sumers in the United States will almost certainly not be able to meet the burden
on causation.
47. Most famous among the studies in the legal literature is Thomas Koenig
and Michael Rustad, His and Her Tort Reform: Gender Injustice in Disguise,
70 Washington Law Review 1 (1995).
48. Among the notable feminist contributions to tort literature, see Leslie
Bender, A Lawyers Primer on Feminist Theory and Tort, 38 Journal of Legal
Education 3 (1988); Lucinda M. Finley, A Break in the Silence: Including
Womens Issues in a Torts Course, 1 Yale Journal of Law and Feminism 41
(1989); Martha Chamallas and Linda K. Kerber, Women, Mothers, and the
Law of Fright: A History, 88 Michigan Law Review 814 (1990); and Leslie
Bender, An Overview of Feminist Torts Scholarship, 78 Cornell Law Review
575 (1993). Soon to be classics, I believe, are Martha Chamallas, The Archi-
tecture of Bias: Deep Structures in Tort Law, 146 University of Pennsylvania
Law Review 463 (1998); Lucinda M. Finley, The Hidden Victims of Tort Re-
form: Women, Children, and the Elderly, 53 Emory Law Journal 1263 (2004);
and even perhaps Ann Scales, Nooky Nation: On Tort Law and Other Argu-
ments from Nature, in Catharine A. MacKinnon and Reva B. Siegel, Directions
in Sexual Harassment Law (New Haven: Yale University Press, 2004), at 307.
49. Investigation of toxic effects of drugs on pregnant women and their chil-
dren is both ethically and legally complex. That is not always an answer, how-
ever, to recognition of the facts that women are encouraged to have children,
are encouraged to medicalize their pregnancies, and have been relatively power-
less against the campaigns of the pharmaceutical and medical industries who
have given them so many insufciently tested and devastating drugs. See R. Alta
Charo, Protecting Us to Death: Women, Pregnancy, and Clinical Research Tri-
als, 38 Saint Louis University Law Review 135 (1993).
174 | Notes to Chapter 3

50. William M. Landes and Richard A. Posner, Causation in Tort Law: An


Economic Approach, 12 Journal of Legal Studies 109, 131 (1983). Judge
Guido Calabresi endorsed the same obfuscation in a slightly different way: in
law the term cause is used in different guises but always to identify those pres-
sure points that are most amenable to the social goals we wish to accom-
plish. . . . [U]se of such concepts has great advantages over explicit identication
and separation of the goals. Terms with an historical, common law gloss [like
cause] permit us to consider goals (like spreading) that we do not want to spell
out or too obviously assign to judicial institutions. Guido Calabresi, Con-
cerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 Uni-
versity of Chicago Law Review 69, 10607 (1975) (emphasis in original).

notes to chapter 4

1. John Locke, Second Treatise of Government (1690).


2. My attorney, J. Michele Guttmann, put her nger on this. Check it out:
particularly if English is your rst language, you probably already know all of
Hamlet, but just dont know the lines in the right order.
3. An unsurprising juxtaposition in the Federalist Papers is the need of a
central government to protect against domestic strife, see Federalist No. 9
(1787), and the efcacy of the limitations on that government, such as separa-
tion of powers, checks and balances, and a bicameral legislature. See Federalist
Nos. 49, 51 (1788).
4. Gary Peller, The Metaphysics of American Law, 73 California Law
Review 1151 (1985).
5. Brown v. Board of Education, 349 U.S. 294 (1954). In Professor Archi-
bald Coxs famous words, Once loosed, the idea of Equality is not easily cab-
ined. Archibald Cox, Forward: Constitutional Adjudication and the Pro-
motion of Human Rights, 80 Harvard Law Review 91 (1966).
6. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)
(poverty is not a suspect basis for legislative action; Equal Protection clause
does not guarantee proportionately equal funding for public schools). By con-
trast, Canadian courts have held that poverty and dependence on public assis-
tance are prohibited grounds of discrimination under Canadian constitutional
equality provisions. Dartmouth/Halifax County Regional Housing Authority v.
Sparks (1993), 101 D.L.R. (4th) 224 (N.S.C.A.), at 233; Falkner v. Ontario
(2002), 56 O.R. (3d) 481 (C.A.), at 84.
7. Catharine A. MacKinnon, Playboys Money, in Feminism Unmodied
(Cambridge: Harvard University Press, 1986), at 134145.
8. Hymowitz v. Eli Lilly and Company, 541 N.Y.S.2d 941 (1989) (drug
companies held proportionately liable based upon their market share), reprinted
Notes to Chapter 4 | 175

in Arthur Best and Jake Barnes, Basic Tort Law: Cases, Statutes, and Problems
(New York: Aspen Publishers, 2003), at 198.
9. Strauss v. Cilek, 418 N.W.2d 378 (Iowa Ct. App. 1987) (disallowing this
plaintiffs claim but allowing that some extramarital conduct could give rise to
legal claims); reprinted in Best and Barnes, note 8 at 76.
10. Eisel v. Board of Education of Montgomery County, 597 A.2d 447 (Md.
1991) (action may proceed where school had specic information about young
womans intentions); reprinted in Best and Barnes, note 8 at 229.
11. Brower v. Ackerley, 943 P.2d 1141 (Wash. Ct. App. 1997) (words alone
do not constitute assault); reprinted in Best and Barnes, note 8 at 41.
12. Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173 (3d Cir. 1994) (in
light of Good Samaritan Rulethat you dont have to be onecasino had
no obligation to aid patron in need); reprinted in Best and Barnes, note 8 at
506; see also Yania v. Bigan, 155 A.2d 343 (Pa. 1959) (specically noting a
moral obligation to aid another in peril but denying any legal obligation), noted
in Best and Barnes, note 8 at 510.
13. These phrases were used in a public relations campaign undertaken in
1983 by the American Society of Plastic and Reconstructive Surgeons, quoted in
Rebecca Weisman, Reforms in Medical Device Regulation: An Examination of
the Silicone Gel Breast Implants Debacle, 23 Golden Gate University Law
Review 973, 990 and n. 138 (1993). Micromastia is dened as a failure of
the breast to respond to hormonal stimulation during the normal maturation
phase. William C. Grabb and James W. Smith, eds., Plastic Surgery, A Concise
Guide to Clinical Practices (Boston: Little Brown, 2nd ed., 1973), at 987.
14. Julie M. Spanbauer, Breast Implants as Beauty Ritual: Womans Scepter
and Prison, 9 Yale Journal of Law and Feminism 152, 164 (1997). Professor
Spanbauer recounts the history from foot-binding, ceruse abuse (a lead-based
white paint used to lighten the complexion), corseting, breast augmentation (by
means including the surgical implantation of glass balls and direct injection of
silicone), to a huge range of treatments for weight loss.
15. Dr. Marcia Angell, Executive Editor of the New England Journal of
Medicine, derided the 1992 decision of then-F.D.A. Commissioner Dr. David
Kessler restricting implant availability as unjustied paternalism. Marcia Angell,
Science on Trial: The Clash of Medical Evidence and the Law in the Breast
Implant Case (New York: W. W. Norton, 1996), at 63.
16. [T]he metaphysical assumption of human beings as individual atoms
which in principle are separable from social molecules does discourage liberals
from conceiving of rationality as constituted by or dened by group norms, let
alone being a property of social structures. Alison M. Jaggar, Feminist Politics
and Human Nature (Totowa, New Jersey: Rowman & Allanheld, 1983), at 29.
17. Ive earlier mentioned the centrality to liberalism of the public/private
176 | Notes to Chapter 4

distinction. The golf clubs right to exclude women is part of decision making in
the sacred private realm. The problem is that this gloried right to privacy usu-
ally obscures underlying equality problems. People who are socially unequal
usually have no privacy to protect: think of the homeless, indigent families
forced to live in a single room, and critics of the government under surveillance.
Think of almost all children. Think of almost all women. As many feminist
lawyers have argued, the privacy principle actually isolates women from one
another and from public recourse for harms done to them. The destructive
effects of the public/private distinction are among the reasons that feminists
insist that the personal is political.
18. This organization is taken from Charles Frankel, Equality of Opportu-
nity, 81 Ethics 191 (1971).
19. The article that made me start thinking seriously about equality theory
when I was just a legal tot, and that is still an excellent exposition of these con-
ceptual issues, is Richard A. Wasserstrom, Racism, Sexism, and Preferential
Treatment: An Approach to the Topics, 24 U.C.L.A. Law Review 582 (1977).
20. The most depressing liberal version of equality is the specter of eradica-
tion of individualism and the excellence that only individualism allegedly can
produce. In one of his early short stories, Kurt Vonnegut described a society
where, pursuant to the 211th, 212th, and 213th Amendments to the Constitu-
tion, everyone was equally stupid, equally lazy, and equally ugly. Kurt Von-
negut, Harrison Bergeron, in Welcome to the Monkey House (New York:
Delacorte Press, 1968), at 7.
21. Thanks to Anne Hunter, of the Massachusetts Institute of Technology,
for this example.
22. Foley v. Connelie, 435 U.S. 291, 296 (1978) (a state may assume that
citizen-ofcers will be more familiar with and sympathetic to American tradi-
tions). Exclusion of resident aliens from governmental involvement does have
limits. Compare Ambach v. Norwick, 441 U.S. 68 (1979) (state may preclude
aliens from employment as public school teachers) with Bernal v. Fainter, 467
U.S. 216 (1984) (commission of notaries public may not be limited to citizens).
23. Typical of these few cases are Smith v. Olin Chemical Corp., 555 F. 2d
1283 (5th Cir. 1977) (discharge of employee because of his sickle cell anemia
could demonstrate race discrimination prohibited by Title VII, but facts not
shown in the case) and Peoples v. City of Salina, 1990 U.S. Dist. LEXIS 4070
(active sickle cell anemia symptoms could disqualify plaintiff from reghter
job). Sickle-cell anemia was a prominent analogy in the pregnancy disability
cases of the 1970s. See General Electric Company v. Gilbert, 429 U.S. 125, 153
(1977) (Brennan, J., dissenting).
24. Again, Charles Frankel 1971s article, note 18, was the model here.
25. Garrett v. Board of Education of the School District of the City of Detroit,
Notes to Chapter 4 | 177

775 F. Supp. 1004 (E.D. Mich. 1991) (important purpose for which all-male
academies came into being not enough to overcome sex discrimination charge).
26. Erin A. McGrath, The Young Womens Leadership School: A Viable
Alternative to Traditional Coeducational Public Schools, 4 Cardozo Womens
Law Journal 455 (1998).
27. A three-judge panel upheld Texas mid-decade redistricting plan, Session
v. Perry, 298 F. Supp. 2d 451 (E.D. Tex. 2004), but the United States Supreme
Court has ordered the lower court to reconsider in light of the recent political
gerrymandering case from Pennsylvania noted below. Jackson v. Perry, 543
U.S. 351 (2004).
28. Vieth v. Jubelirer, 541 U.S. 267 (2004)(pursuant to political question
doctrine, there are no judicially discernible and manageable standards to deter-
mine whether the Pennsylvania redistricting scheme, a political gerrymander
that will increase Republican representation in the federal House, violates the
one person, one vote requirement). Vieth was a close and inconclusive de-
cision. See Mitchell N. Berman, Managing Gerrymandering, 83 Texas Law
Review 781 (2005). We shall see whether the Supreme Courts order requiring
reconsideration of the Texas reapportionment scheme, 543 U.S. 351, will shed
any further light on the subject of political gerrymandering.
29. See Georgia v. Ashcroft, 539 U.S. 461 (2003) (Georgia plan to increase
minority inuence districts does not meet requirements of Voting Rights Act;
purpose of act is to foster transformation to a society that is no longer xated
on race).
30. See for example, Egan v. Canada [1995] 2 S.C.R. 513; Vriend v. Alberta
[1998] 1 S.C.R. 493.
31. The allusion is to Williamson v. Lee Optical of Oklahoma, Inc., 348
U.S. 483 (1955). The Supreme Court held against claims brought by opticians
challenging a state law that prohibited opticians from tting or duplicating
lenses without a prescription. In deciding that the law did not unconstitutionally
discriminate between opticians on one hand and ophthalmologists and optom-
etrists on the other, the Court famously indulged in a speculative account of
why the Oklahoma legislature might have enacted such a law. Id. at 489. A
court could less fancifully conclude that this was not the sort of problem that
constitutional equality provisions were intended to address.
32. Compare Law v. Canada [1999] 1 S.C.R. 497 with Williamson v. Lee
Optical, 348 U.S. 483 (1955).
33. Professor Martha Minnow has written insightfully of how powerful en-
tities, such as corporations, have appropriated the places and expressions of
injured parties in their various campaigns for more power, including in the tort
reform movements. Martha Minnow, Surviving Victim Talk, 40 U.C.L.A.
Law Review 1411 (1993).
178 | Notes to Chapter 4

34. The Constitution Act, Part I, Canadian Charter of Rights and Freedoms,
15(2) (1982).
35. The Constitution Act, Part I, Canadian Charter of Rights and Freedoms,
1 (1982). In any section 1 analysis, however, the government bears a heavy
burden of proof, very close to what American lawyers would recognize as
strict scrutiny.
36. See for example, Donald L. Beschle, Clearly Canadian? Hill v. Col-
orado and Free Speech Balancing in the United States and Canada, 28 Hast-
ings Constitutional Law Quarterly 187 (2001).
37. Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143.
38. Compare Geduldig v. Aiello, 417 U.S. 484 (1974) with Brooks v. Can-
ada Safeway Limited [1989] 1 S.C.R. 1219.
39. Vriend v. Alberta (1998), 156 D.L.R. (4th) 385 (S.C.C.), at 131, 13436.
40. Id.(holding that the Alberta legislature must include sexual orientation
as a protected ground in that provinces human rights legislation).
41. Ontario Human Rights Commission and OMalley v. Simpsons-Sears,
Limited [1985] 2 S.C.R. 536.
42. Washington v. Davis, 426 U.S. 229, 248 (1976).
43. In the gender realm, Professor MacKinnon has put this most pithily:
[E]very quality that distinguishes men from women is already afrma-
tively compensated in societys organization and values, so that it implic-
itly denes the standards that it neutrally applies. Mens physiology de-
nes most sports, their health needs largely dene insurance coverage,
their socially designed biographies dened workplace expectations and
successful career patterns, their perspectives and concerns dene quality
in scholarship, their experiences and obsessions dene merit, their mili-
tary service denes citizenship, their presence denes family, their inability
to get along with each othertheir wars and rulershipsdenes history,
their image denes god, and their genitals dene sex. These are the stan-
dards that are presented as gender neutral. For each of mens differences
from women, what amounts to an afrmative action plan is in effect, oth-
erwise known as the male-dominant structure and values of American
society.
Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge:
Harvard University Press, 1989), at 224.
44. See Martha Albertson Fineman, The Autonomy Myth (New York: Free
Press, 2004); Patricia J. Williams, Gilded Lilies and Liberal Guilt, in The Al-
chemy of Race and Rights (Cambridge: Harvard University Press, 1991), at 15
43; Robin West, The Difference in Womens Hedonic Lives: A Phenomenologi-
cal Critique of Feminist Legal Theory, 3 Wisconsin Womens Law Journal 81
(1987).
45. As an example of the convolutions of choice, consider the matter of
Notes to Chapter 4 | 179

Kirk v. Washington State University, 746 P.2d 285 (Wash. 1987) (en banc). The
university moved cheerleading practice from a padded gymnastics facility to an
articial turf surface, without warning the cheerleaders of the increased dangers
of practicing on that new surface. In 1978, while practicing shoulder stands, a
maneuver where the female cheerleaders had to stand on the shoulders of male
cheerleaders, a female fell, permanently injured her elbow, and suffered depres-
sion. The university argued that the plaintiff should not recover damages be-
cause she voluntarily assumed the risk of injury, and that her damages should be
reduced in accordance with preexisting depression that the university claimed
was a result of her having had abortions. The result was that the damages were
reduced based on plaintiffs participation in the maneuver, but not based on the
abortions because the evidence of having had abortions was prejudicial.
Beyond the holding of the case, however, I have some questions about choices.
In the year of the injury, before Title IX had much changed college athletics,
might we want to know more about the plaintiffs choice to become a cheer-
leader, especially when they had unsafe practice premises? Might we ask about
the female cheerleaders choice to be the ones thrown around in the air?
What sorts of choices about their sexuality lead young women to choose to
have abortions? How many times in one case can a plaintiff be punished for
having anything that even looks like a choice?
46. The Supreme Court of Canada has explicitly rejected the idealism of
U.S. First Amendment law. In a case upholding the Canadian criminal prohibi-
tion on racial and religious hate speech, that Court stated:
[W]e are less condent in the 20th century that the critical faculties of
individuals will be brought to bear on the speech and writing which is
directed at them. . . . While holding that over the long run, the human
mind is repelled by blatant falsehood and seeks the good, it is too often
true, in the short run, that emotion displaces reason and individuals per-
versely reject the demonstrations of truth put before them and forsake the
good they know. The successes of modern advertising, the triumphs of
impudent propaganda such as Hitlers, have qualied sharply our belief in
the rationality of man.
R. v. Keegstra [1990] 3 S.C.R. 697, 66 (quoting Special Committee on Hate
Propaganda in Canada [Cohen Committee], 1966).
47. See Jacques Lacan, crits: A Selection (New York: Norton Books, A.
Sheridan trans. 1977)(describing fear of contingency and attempts to suppress it
by imposition of a phallocentric order on the world).
48. Virginia Woolf speaks of the fear of unimportance in a typically disarm-
ing way:
Life for both sexesand I looked at them, shouldering their way along
the pavementis arduous, difcult, a perpetual struggle. It calls for gi-
gantic courage and strength. More than anything, perhaps, creatures of
180 | Notes to Chapter 4

illusion as we are, it calls for condence in oneself. . . . And how can we


generate this imponderable quality, which is yet so invaluable, most
quickly? By thinking that other people are inferior to oneself. . . . Women
have served all these centuries as looking-glasses possessing the magic and
delicious power of reecting the gure of man at twice its natural size.
Without that power probably the earth would still be swamp and jungle.
Virginia Woolf, A Room of Ones Own (1929) (New York: Harcourt, Brace and
World, 1957), at 35.
49. For the legal repercussions of a psychology of dependency (as opposed
to a psychology of individualism and aggression), see J. C. Smith, The Sword
and Shield of Perseus: Some Mythological Dimensions of the Law, 6 Journal of
Law and Psychiatry 235, 24142 (1983).
50.
Creative mythology . . . springs not, like theology, from the dicta of
authority, but from the insights, sentiments, thoughts, and vision of an
adequate individual. . . . Renewing the act of experience itself, it restores
to existence the quality of adventure, at once shattering and reintegrating
the xed, already known, in the sacricial creative re of the becoming
thing that is no thing at all but life, not as it will be, or as it should be, as
it was or as it never will be, but as it is, in depth, in process, here and
now, inside and out.
Joseph Campbell, The Masks of God: Creative Mythology (New York: Viking
Press, 1968), at 8.
51. Andrea Dworkin, Right-Wing Women (New York: Perigee Books, 1983),
at 221.

notes to chapter 5

1. It is not always easy to locate that membership. Increasingly, there are


ragged boundaries demarcating the formerly dualistic biological grouping of the
sexes. See Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Con-
struction of Sexuality (New York: Basic Books, 2000).
2. See Grant Gilmore, The Ages of American Law (New Haven: Yale Uni-
versity Press, 1977), at 87 (the Realist revolution may have been merely a
palace revolution, not much more than a changing of the guard.); Robert
Stevens, Law School: Legal Education in America from the 1950s to the 1980s
(Chapel Hill: University of North Carolina Press, 1983), at 156 (The effect
of the Realists was much like the role that Carlyle pronounced for Matthew
Arnold: He led them into the wilderness and left them there. ).
3. See Ann Scales, Towards a Feminist Jurisprudence, 56 Indiana Law
Journal 375 (1981).
4. A mere rational basis test applied in sex discrimination cases until
Notes to Chapter 5 | 181

1976, when the U.S. Supreme Court elevated the standard for measuring sex
discrimination to intermediate scrutiny. Craig v. Boren, 429 U.S. 190 (1976)
(requiring that the state has the burden of showing both that its action serves an
important governmental objective and that the means chosen to achieve that
objective are substantially related to it).
5. Catharine A. MacKinnon, Sexual Harassment of Working Women (New
Haven: Yale University Press, 1979), at 10141.
6. Aristotle, Nichomachean Ethics V(3), David Ross, trans. (Oxford: Ox-
ford University Press, 1972) (1925), at 11214.
7. Reed v. Reed, 404 U.S. 71 (1971).
8. Geduldig v. Aiello, 417 U.S. 484 (1974) (exclusion of pregnancy from
risks covered by state employees insurance plan does not constitute sex dis-
crimination under the Equal Protection clause); Dothard v. Rawlinson, 433 U.S.
321 (1977) (refusal to hire female prison guards authorized by Title VII of the
Civil Rights Act of 1964); Rostker v. Goldberg, 453 U.S. 57 (1981) (upholding
constitutionality of exclusion of women from draft registration). For the other
side of that familiar coin, see Personnel Administrator v. Feeney, 442 U.S. 256
(1979) (upholding Massachusetts veterans preference for civil service posi-
tions); Nguyen v. Immigration and Naturalization Service, 533 U.S. 53 (2001)
(upholding immigration provision forcing male citizens, but not female citizens,
to prove parentage of children born abroad who wish to acquire citizenship).
9. In U.S. legal theory, the canonical text on the need for transcendence of
results in constitutional adjudication is Herbert Wechsler, Toward Neutral
Principles of Constitutional Law, 73 Harvard Law Review 1 (1959).
10. Carol C. Gould, The Woman Question: Philosophy of Liberation and
the Liberation of Philosophy, in Carol C. Gould and Marx W. Wartofsky, eds.,
Women and Philosophy: Toward a Theory of Liberation (New York: Putnam,
1976), at 513.
11. Underlying this approach is the correspondence theory of truth and
reference theory of meaning, associated with the Rationalist tradition in phi-
losophy described in chapter 2. Pursuant to the correspondence theory, there
is an objective reality out there and the truth value of our knowledge or
statements about the world is a function of how closely they correspond to
that reality. As applied to law, judgments are valid only when they reect objec-
tive facts. For a fuller explanation of correspondence theory, see Bertrand Rus-
sell, The Problems of Philosophy (New York: Oxford University Press, 1980)
(1912), at 126130. For a detailed account of why correspondence theory does-
nt work in law, see chapter 3.
12. Gould, note 10, at 20.
13. Id. at 21.
14. Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cam-
bridge: Harvard University Press, 1989), at 116 17. For an analysis of how
182 | Notes to Chapter 5

rationality came to be dened as maleness and vice versa, see Sandra Harding,
Is Gender a Variable in Conceptions of Reality? A Survey of Issues, in Carol
C. Gould, ed., Beyond Domination: New Perspectives on Women and Philoso-
phy (Totowa, N.J.: Rowman and Allenheld 1984), at 52.
15. Ann Scales, The Emergence of Feminist Jurisprudence, 95 Yale Law
Journal 1373, 1378 (1986).
16. Daniel Farber and Suzanna Sherry, Beyond All Reason: The Radical As-
sault on Truth in American Law (New York: Oxford University Press, 1997), at
26, 101 (presenting my work as ridiculous on its face); Walter Olson, The Law
On Trial, Wall Street Journal, October 14, 1997 (quoting my description of
objective reality as a myth, and referring to me as a radical multiculturalist).
17. At least in the classical world, myth was the exemplary model for all
signicant human activities. Rex Warner, Foreword, Encyclopedia of World
Mythology (New York: Galahad Books, 1975), at 11. Contemporary feminist
authors regard myth as a connection to transformational ideational energy. Jane
Caputi, Goddesses and Monsters: Women, Myth, Power, and Popular Culture
(Madison: University of Wisconsin/Popular Press, 2004), at 29193.
18. Most famous among judicial expressions of the notion is Justice Brad-
leys concurrence in Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 1442 (1872)
(holding 14th Amendments privileges and immunities clause did not entitle
Myra Bradwell to bar membership):
[T]he civil law, as well as nature herself, has always recognized a wide dif-
ference in the respective spheres and destinies of man and woman. Man
is, or should be, a womans protector and defender. The natural and
proper timidity and delicacy which belongs to the female sex evidently
unts it for many of the occupations of civil life. The constitution of the
family organization, which is founded in the divine ordinance, as well as
in the nature of things, indicates the domestic sphere as that which prop-
erly belongs to the domain and functions of womanhood. . . . The para-
mount destiny and mission of woman are to fulll the noble and benign
ofces of wife and mother. This is the law of the Creator. And the rules of
civil society must be adapted to the general constitution of things. . . .
19. For a helpful synopsis of early theories about the nature of woman,
see Caroline Whitbeck, Theories of Sex Difference, in Women and Philoso-
phy: Toward a Theory of Liberation, note 10, at 54.
20. Palsgraf v. Long Island Railway, 248 N.Y. 339, 162 N.E. 99 (1928).
21. Heisenberg formulated the uncertainty principle in 1926; see Stephen W.
Hawking, A Brief History of Time: From the Big Bang to Black Holes (New
York: Bantam Books, 1988), at 5455, and later included it as part of his quan-
tum theory. Werner Heisenberg, The Physical Principles of the Quantum The-
ory, Carl Eckart and Frank C. Hoyt, trans. (New York: Dover Publications,
1930), at 4, 20, 6265. In 1982, Professor Morton Horwitz noted the simul-
Notes to Chapter 5 | 183

taneity between the displacement of strict causality in the natural sciences and
the development of pro-capitalist proximate cause doctrines in the common
law. Morton J. Horwitz, The Doctrine of Objective Causation, in David
Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon
Books, 1982), at 21213, note 10.
22. See Laurence H. Tribe, The Curvature of Constitutional Space: What
Lawyers Can Learn from Modern Physics, 103 Harvard Law Review 1 (1989)
(at the least, the metaphors of physics have heuristic ramications for constitu-
tional law).
23. These ideas were rst articulated in a feminist context in Simone de
Beauvoir, The Second Sex, H. Parshley, trans. (New York: Vintage Books, 1974)
(1952).
24. For examples of such an approach in science and psychology, see Evelyn
Fox Keller, Reections on Gender and Science (New Haven: Yale University
Press, 1985), at 178 (A healthy science is one that allows for the productive
survival of diverse conceptions of mind and nature, and of correspondingly
diverse strategies. In my vision of science, it is not the taming of nature that is
sought, but the taming of hegemony.); and Gilbert Ryle, The Concept of Mind
(New York: Barnes and Noble, 1949), at 2829:
The well-regulated clock keeps good time and the well-drilled circus seal
performs its tricks awlessly, yet we do not call them intelligent. We
reserve this title for the persons responsible for their performances. To be
intelligent is not merely to satisfy criteria, but to apply them; to regulate
ones actions and not merely to be well-regulated. . . . [A person] applies
criteria in performing critically, that is, in trying to get things right.
25. Ludwig Wittgenstein, Philosophical Investigations, G. E. M. Anscombe,
trans. (Oxford: Blackwell, 1968) (1958), at 6678, at 3136. I do not mean
to imply that I think of the process of legal justication as a game. On the con-
trary, it is misleading when legal philosophers do; see, e.g., John Rawls, Two
Concepts of Rules, 64 Philosophical Review 3, 24 27 (1955) (comparing
adjudication to baseball), because legal proceedings often require us to question
the rules themselves as well as what the rules mean. Wittgensteins point is that
when we use even a very familiar concept (like games), we are making a com-
plex but reliable judgment by means of criteria we cannot even articulate.
26. Wittgenstein, note 25 at 67, at 32. I relish the fact that, in this exam-
ple and the next, Wittgenstein talks about activities that are traditionally rele-
gated to women: spinning thread and child tending.
27. Id. at 33 (paragraph without number).
28. Id. 415, at 125.
29. Gould, note 10, at 27.
30. Wittgenstein, note 25, 88, at 41.
31. Id. 71, at 34.
184 | Notes to Chapter 5

32. See Thomas S. Kuhn, The Structure of Scientic Revolutions (Chicago:


University of Chicago Press, 2d ed. 1970) (1962), at 108 (abandonment by eigh-
teenth-century scientists of attempt to explain gravity reected neither a de-
cline nor a raising of standards, but . . . the adoption of a new paradigm).
33. One of the favorite targets of Wittgensteins assault on philosophical
muddles was metaphysical solipsism, which maintains that the self of the
thinker is the whole of reality; the external world and other persons have no
independent existence. This argument asserts that I cannot be certain of your
existence because I cannot experience your sensations; I cannot, for example,
know your pain. Beginning from the perspective of how people actually
use language, Wittgenstein demonstrated that such an assertion merely evinces
confusion about the grammar of the word know (Wittgenstein, note 25,
246, at 89) and of the word pain (id. 293, 303, 384, at 100, 102, 118).
Thus, it makes sense to say I feel my pain, or I know your pain (id. 246,
at 89), but to maintain that I know my pain and dont know yours makes no
more sense than to say, Someone is in painI dont know who! (id. 407
408, at 123).
34. Id. 67, at 32.
35.
No systematic thought has made progress apart from some adequately
general working hypothesis, adapted to its special topic. Such an hypoth-
esis directs observation, and decides upon the mutual relevance of various
types of evidence. In short, it prescribes method. To venture upon produc-
tive thought without such an explicit theory is to abandon oneself to the
doctrines derived from ones grandfather.
Alfred North Whitehead, Adventures of Ideas (New York: Macmillan, 1933), at
286.
36. MacKinnon, Sexual Harassment of Working Women, note 5, at 117.
The critical word in the standard is not gender. I believe that similar stan-
dards could be developed to apply in cases regarding various socially mistreated
groupsincluding those intersectionally situatedbecause the standard is the
legalized expression of the general principle of antisubordination. Among the
critical features of that expression are the absence of a requirement to show
intention on the part of discriminators, the necessity of thorough contextualiza-
tion to identify integral contributions to social hierarchy, and the condem-
nation of disadvantage based on status rather than on identity or the fact of
classication itself.
37. There are a number of versions of the standard to choose among. Profes-
sor Robert Post, for example, has recently proposed something much like the
MacKinnon standard, calling it the sociological account. Robert C. Post,
Prejudicial Appearances: The Logic of American Antidiscrimination Law, in
Robert C. Post with K. Anthony Appiah, Judith Butler, Thomas C. Grey, and
Notes to Chapter 5 | 185

Reva B. Siegel, Prejudicial Appearances (Durham: Duke University Press, 2001),


at 2122, 4052.
38. See, for example, my description of Canadian equality principles in
chapter 4. A burgeoning comparative law literature describes Canadian juris-
prudence as dialogic, engaging openly with other countries in order to iden-
tify the normative and factual assumptions underlying [its] own constitutional
jurisprudence. Sujit Choundhry, Globalization in Search of Justication:
Toward a Theory of Comparative Constitutional Interpretation, 74 Indiana
Law Journal 819, 825 (1999). By contrast, the United States Supreme Court in
particular remains focused on a heroic view of its own constitutional work
(David Strauss, The New Textualism in Constitutional Law, 66 George
Washington Law Review 1153, 1154 (1998)), which leads it to positions that
are isolationist and perhaps paranoid; that are aggressively and undemocrati-
cally authoritative; that reject the existence and even the possibility of ambigu-
ity; and that risk underenforcement of constitutional rights. Sarah K. Harding,
Comparative Reasoning and Judicial Review, 28 Yale Journal of Interna-
tional Law 409, 44648, 443, 435 (2003).
39. Regarding different kinds of stereotypes, see K. Anthony Appiah, Ster-
eotypes and the Shaping of Identity, in Prejudicial Appearances, note 37, at 55.
40. Id. at 6465.
41. See Nguyen v. Immigration and Naturalization Service, 533 U.S. 53
(2001) (upholding requirement that fathers of children born abroad undergo
more administrative steps than mothers to secure childs citizenship); Michael
M. v. Sonoma County Superior Court, 450 U.S. 464, 476 (1981) (upholding
statutory rape law that presumes male is culpable aggressor because conse-
quences of sexual intercourse and pregnancy fall more heavily on the female
than on the male); Geduldig v. Aiello, 417 U.S. 484, 496 n. 20 (1974) (disabil-
ity insurance system did not exclude anyone from benet eligibility because of
gender but merely removes one physical conditionpregnancyfrom the list
of compensable disabilities).
42. MacKinnon, Sexual Harassment of Working Women, note 5 at 118.
43. Id. at 117.
44. Ratication of the Nineteenth Amendment, for example, which in 1920
guaranteed women the right to vote, required seventy-ve years of ceaseless
struggle from its female proponents but could not nally have been accom-
plished without the action of surrogates.
45. Thus, I believe the inequality approach would oppose the result in Mi-
chael M. v. Sonoma County Superior Court, 453 U.S. 57 (1981), the case that
upheld a version of the California statutory rape law for which only males
could be prosecuted. Such a provision is not intended to remedy disadvantages
suffered by women. Rather, such provisions were designed, rst, to render fe-
males incapable of consent (thereby institutionalizing their nonpersonhood),
186 | Notes to Chapter 5

and second, to preserve the chastity of females (thereby preventing property


damage). In 1993, California changed its statutory rape law to make it gender
neutral. Cal. Penal Code 261.5 (West 2000).
46. There is so much backlash that backlash results from the mention of
backlash. For example, the Eighth Circuit reversed summary judgment for the
defendant in a hostile-environment sexual harassment case, where, among other
things, during a conversation among coworkers about Susan Faludi, Backlash:
The Undeclared War Against American Women (New York: Crown, 1991), a
male employee called the plaintiff a bitch, and the district manager became
very angry and exploded stating: You women, since when are women always
right and men are always wrong? If your womens movement had its way, every
woman would be working and our children would be being raised in com-
munes. Hocevar v. Purdue Frederick Co., 223 F.3d 721, 725 (8th Cir. 2000).
This sort of episode informs the song lyric that is the epigraph to this chapter,
People sure get nervous when a womans free. Michael Henderson, The
Restless Kind (Colgems-EM Music, Inc., 1981), as sung by Trisha Yearwood
on the album Thinkin About You (Nashville: MCA, 1995).
47. Meika Schmidt-Gleim and Mieke Verloo, One More Feminist Mani-
festo of the Political, IWM Working Paper No. 2/2003, Vienna 2003, at 4,
available at http://www.iwm.at/publ-wp/wp-03-02.pdf (visited August 3, 2005).
48. Id. at 1014.
49. Professor Owen Fiss found the path from the singular focus on indi-
vidual opportunity to the group-disadvantaging principle. Owen M. Fiss,
Groups and the Equal Protection Clause, 5 Philosophy and Public Affairs
107 (1976). It was Professor MacKinnon, however, who in 1979 provided the
name as well as the outlines of antisubordination theory. MacKinnon, Sexual
Harassment of Working Women, note 5.
50. See for example, John O. Calmore, Social Justice Advocacy in the
Third Dimension: Addressing the Problem of Preservation-Through-Transfor-
mation, 16 Florida Journal of International Law 615 (2004); Laura Rovner,
Disability, Equality, and Identity, 55 Alabama Law Review 1043 (2004);
Pamela S. Karlan, Foreword: Loving Lawrence, 102 Michigan Law Review
1447 (2004).
51. Among the most useful papers on the topic of the relationships among
systems of subordination is Nancy Ehrenreich, Subordination and Symbiosis:
Mechanisms of Mutual Support Between Subordinating Systems, 71 University
of MissouriKansas City Law Review 251 (2002).
52. Postmodernist theorists argue, for example, that feminists must get over
the binary categories of gender, and indeed the category of gender itself, because
every time we use those categories, we limit and constrain in advance the very
cultural possibilities that feminism is supposed to open up. Judith Butler, Gen-
Notes to Chapter 5 | 187

der Trouble: Feminism and the Subversion of Identity (New York: Routledge,
1990), at 146.
53. Aldous Huxley, The Perennial Philosophy (New York: Harper and
Brothers, 1945), at 93.
54. Id. at 135.
55. In the emerging literature of virtue ethics, for example, Professor Ros-
alind Hursthouse argues that racism results from miseducation in virtue, those
aspects of human ourishing described by Aristotlewisdom, courage, generos-
ity, and honestythe learning of which are a lifes work. Rosalind Hursthouse,
On Virtue Ethics (New York: Oxford University Press, 1999), at 10820.
56. It must be that there is or has been something fun and sexy about hurt-
ing other people in ways that track existing maps of subordination. Consider
this remark from the highly decorated Marine Corps Lieutenant-General James
Mattis:
You go into Afghanistan, you got guys who slap women around for ve
years because they didnt wear a veil. You know, guys like that aint got
no manhood left anyway. So its a hell of a lot of fun to shoot them.
Reported in John J. Lumpkin, Shooting Some People Is A Hoot, General
Said, Chicago Sun Times, February 4, 2005, at 5. General Mattis was coun-
seled to use his words more carefully. Id. This outburst about the pleasure
derived from intersectional racialized and gendered violence resonates with the
insights of progressive theorists. For example, bell hooks describes sexualized
aspects in the historical appropriation of black bodies and black culture. bell
hooks, Black Looks: Race and Representation (Boston: South End Press, 1992);
Anthony Farley argues that race is experienced as a form of bodily pleasure.
Anthony Paul Farley, The Poetics of Colorlined Space, in Francisco Valdes,
Jerome McCristal Culp, and Angela P. Harris, eds., Crossroads, Directions, and
a New Critical Race Theory (Philadelphia: Temple University Press, 2002), at 97.
57. Speaking of the mess between the 2004 invasion of Falluja and the elec-
tions in Iraq, a retired general said, [Y]ouve got to go with what youve got. I
mean, you have to make the best of a broken play. General Montgomery
Meigs (Ret.), Former Commander, NATO Stabilization Force, Meet The Press
(NBC), December 12, 2004, transcript available at http://msnbc.msn.com/id/
6702005/. I believe that General Meigs was talking about football; earlier in the
broadcast he had spoken of the relative lack of preparation of troops from the
National Guard. Its not that anyone is discriminating against the Guard.
Youve trying to make the scrimmage as tough as the game.
58. de Beauvoir, note 23.
59. Dorothy Dinnerstein, The Mermaid and the Minotaur: Sexual Arrange-
ments and Human Malaise (New York: Harper, 1977), at 21424.
60. Rostker v. Goldberg, 453 U.S. 57 (1981) (in spite of evidence that regis-
188 | Notes to Chapter 5

tration of women would increase military readiness, Equal Protection clause did
not preclude male-only draft registration). For further discussion of Rostker, see
Ann Scales, Militarism, Male Dominance, and the Law: Feminist Jurispru-
dence as Oxymoron? 12 Harvard Womens Law Journal 25 (1989).
61. Damien Cave, Army Recruiters Say They Feel Pressure to Bend Rules,
New York Times, May 3, 2005, at A23.
62. Michael Janofsky and Adam Nagourney, Governors Concerned Over
National Guard Deployments in Iraq, New York Times, July 17, 2005, at 122.
63. Although the rate of discharge of gay and lesbian soldiers has dropped
by half since September 1, 2001, the Pentagon has spent more than $200 mil-
lion to recruit and train personnel to replace those discharged pursuant to the
dont ask, dont tell policy in the past decade. Interestingly, the United King-
dom, the closest ally of the United States in the Iraqi war, has completely
changed its tune on gay and lesbian soldiers. Five years after lifting its ban on
gays in the military, and less than a year after the beginning of the Iraqi war, the
Royal Navy began actively to recruit gays and lesbians. John Files, Rules on
Gays Exact A Cost In Recruiting, A Study Finds, New York Times, February
24, 2005, at A21.
64. Damien Cave, Pentagon May Consider Older Recruits, New York
Times, July 22, 2005, at A11 (Pentagon asks Congress to increase maximum
recruiting age from 39 to 42); Alan Cooperman, Peace Corps Option for Mili-
tary Recruits Sparks Concerns, Washington Post, August 2, 2005, at A11 (law
that allows recruits to meet part of military obligation by serving in Peace Corps
may endanger reputation and safety of Peace Corps volunteers); Cave, Pressure
to Bend Rules, note 61 (improprieties in recruiting practices).
65. Damien Cave, For Recruiters, A Hard Toll From a Hard Sell, New
York Times, March 27, 2005, at 11. See also James Dao, The Draft Card: The
Option Nobodys Pushing Yet, New York Times, October 3, 2004, at 41 (Pen-
tagon took position that draft could be avoided only if recruiting numbers
stayed high; recruiting numbers have fallen dramatically short). Under the pre-
sent regime, men ages 18 to 25 must register for Selective Service. Should a draft
be reinstated, the rst to be called would be men whose twentieth birthday fell
during the year the lottery was held. As needed, the number would rise, 21-
year-olds next, and so forth. The Pentagon suggests that 18- and 19-year-olds
would not be drafted. Jane Gordon, Men 18 to 25 Must Still Register, New
York Times, October 31, 2004.
66. David M. Kennedy, The Best Army We Can Buy, New York Times,
July 25, 2005, at A19.
67. The policy since 1994 is that women may not serve in ground-combat
units smaller than brigades, on the theory that larger units have less contact
with the enemy. Direct-combat units include infantry, armor, Special Forces,
eld artillery, and combat engineers. Women are allowed, however, to y attack
Notes to Chapter 6 | 189

aircraft and to serve in forward support companies and transportation com-


panies that regularly come under re in Iraq. Thom Shanker, House Bill Would
Preserve, and Limit, the Role of Women in Combat Zones, New York Times,
May 20, 2005, at A20.
68. Nick Papps, Should Women Soldiers Be Dying in Iraq? Sunday Tele-
graph (Sydney), July 10, 2005, at 44. As of 2004, women made up about 10
percent of the number of U.S. soldiers serving in Iraq but only 3 percent of the
deaths. Monica Davey, The Conict in Iraq: For 1,000 Troops, There Is No
Going Home, New York Times, September 9, 2004, at A1.
69. House Passes Defense Authorization Bill, Army, July 1, 2005, at 10.
70. Scales, Militarism, note 60, at 4042 (quoting a marine quoted by Cyn-
thia Enloe, Does Khaki Become You? The Militarization of Womens Lives
(Boston: South End Press, 1983), at 212).
71. For a fuller account of why this is so, see Ann Scales, Soft on Defense:
The Failure to Confront Militarism, 20 Berkeley Journal of Gender, Law and
Justice 369 (2005).
72. Why so much brouhaha, for example, over the story of six-time mur-
derer Aileen Wuornos, wrenchingly portrayed in the award-winning lm Mon-
ster (Patty Jenkins, Dir., 2003)? Other serial killersalmost always menget
lots of attention, even adoration, but it is not quite the same. Wuornos was the
rst iconic female serial killer. Her story was compelling because (at least she
said in some interviews) that she killed the men because they were men, for
what men did to women. It is socially acceptable to notice the gendered nature
of her violence, I believe, because her story can be used to argue that sexualized
violence is an equal opportunity debacle. See sources collected in Caputi, note
17, at 187, 41011.
73. Women are overwhelmingly the victims of intimate violence, and men
are overwhelmingly the perpetrators. According to the United States Depart-
ment of Justice, in 1998, for example, females were the victims in 72 percent of
intimate murders and the victims of about 85 percent of nonlethal intimate vio-
lence. http://www.ojp.usdoj.gov/bjs/cvict_c.htm#relate (visited May 29, 2005).
Ninety-three percent of adult women and 86 percent of adult men who are
raped or physically assaulted are raped or physically assaulted by male perpetra-
tors. http://www.ncjrs.org/pdfles/172837.pdf (visited August 3, 2005). The fact
that the epidemic of intimate violence is discussed in gender-neutral terms
speaks volumes about the psychological stakes of preventing discussion in gen-
dered terms.

notes to chapter 6

1. Adrienne Rich, A Vision (Thinking of Simone Weil), in A Wild Patience


Has Taken Me This Far (New York: W. W. Norton, 1981), at 50.
190 | Notes to Chapter 6

2. I do not wish to understate the nature of the Bush agenda. If it nally suc-
ceeds, it will undermine not just political liberalism but philosophical liberal-
ism. It will transform the liberal individual into a manufactured citizen. A useful
way of identifying the threat is to recall the difference between George Orwells
1984 (New York: Harcourt Brace, 1949) and Aldous Huxleys Brave New
World (New York: Harper, 1950), as explained by Professor Neil Postman:
Huxley and Orwell did not prophesy the same thing. Orwell warns that
we will be overcome by an externally imposed oppression. But in Hux-
leys vision . . . people will come to love their oppression, to adore the
technologies that undo their capacities to think. . . . What Orwell feared
were those who would ban books. What Huxley feared was that there
would be no reason to ban a book, for there would be no one who
wanted to read one. Orwell feared those who would deprive us of infor-
mation. Huxley feared those who would give us so much that we would
be reduced to passivity and egoism. Orwell feared that the truth would be
concealed from us. Huxley feared the truth would be drowned in a sea of
irrelevance.
Neil Postman, Amusing Ourselves to Death: Public Discourse in the Age of
Show Business (New York: Penguin Books, 1985), at vii.
3. Although Mr. Meese did not actually participate, the Justice Department
at the time empaneled a commission to study pornography, which found that
there is a connection between pornography exposure and sexual violence. Of
course, antipornography feminists had been making that connection for a long
time. The alleged alignment was said to be the kiss of death because of conict-
ing interests in similar legislation: the feminist interest in pornography regula-
tion is to provide civil remedies for pervasive practices that harm women; the
right-wing womens interest is supposedly in the perpetration of their own ideas
of virtue, both feminine and masculine. Pornography regulation is to them a
vehicle for imposing their narrow morality on everyone else. For a great syn-
opsis of the Meese Commission controversy, see Robin West, The Feminist-
Conservative Anti-Pornography Alliance and the 1986 Attorney Generals
Commission on Pornography Report, 1987 American Bar Foundation Re-
search Journal 681 (1987).
4. See Janet Halley, Sexuality Harassment, in Catharine A. MacKinnon
and Reva B. Siegel, eds., Directions in Sexual Harassment Law (New Haven:
Yale University Press, 2003), at 182.
5. Margaret Talbot, Men Behaving Badly, New York Times, October 13,
2002, (Magazine), at 52, 84.
6. Andrea Dworkin, Right-Wing Women (New York: Perigee Books, 1983),
at 1325.
7. Lon L. Fuller, Positivism and Fidelity to Law A Reply to Professor
Hart, 71 Harvard Law Review 630, 632 (1958).
Notes to Chapter 6 | 191

8. Rabidue v. Osceola Rening Company, 805 F.2d 611 (6th Cir. 1986),
cert. denied, 481 U.S. 1041 (1987). Contrary to the Sixth Circuit view, at least
one court has recognized that workplace saturation by pornography can give
rise to a hostile environment claim. Robinson v. Jacksonville Shipyards, Inc.,
760 F. Supp. 1486 (M.D. Fla. 1991).
9. The sexually oriented poster displays had a de minimis effect on the
plaintiffs work environment when considered in the context of a society that
condones and publicly features and commercially exploits open displays of writ-
ten and pictorial erotica at the newsstands, on prime-time television, at the cin-
ema, and in other public places. 805 F. 2d at 622.
10. Chapter 5, note 19.
11. The rst United States Supreme Court case to accept sexual harassment
doctrine involved a plaintiff who had had a prior relationship with her harasser.
The Court held that the lower court had erroneously focused on the voluntari-
ness of that conduct. Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986).
12. Kahn v. Objective Solutions, Intl., 86 F. Supp. 2d 377, 382 (S.D.N.Y.
2000).
13. Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183,
1188 (11th Cir. 2001).
14. Andrea Dworkin, Against the Male Flood: Censorship, Pornography,
and Equality, in Letters from a War Zone (New York: E. P. Dutton, 1988), at
253.
15. Texas Beef Group v. Winfrey, 11 F. Supp. 2d 858 (N.D. Tex. 1998),
affd 201 F. 3d 680 (5th Cir. 2000). Thirteen states have food defamation
laws, and other states are considering them. Margot S. Fell, Agricultural Dis-
paragement Statutes: Tainted Beef, Tainted Speech, and Tainted Law, 9 Ford-
ham Intellectual Property, Media and Entertainment Law Journal 981 (1999).
16. Al Franken, Lies and the Lying Liars Who Tell Them: A Fair and Bal-
anced Look at the Right (New York: Penguin, 2003).
17. Fox News Network, LLC. v. Penguin Group, 03 Civ. 6162 (RLC) (DC)
(S.D.N.Y. 2003).
18. Fox News Drops Franken Lawsuit, CBSNews.com, August 25, 2003.
19. Maria Newman, CBS Pulls Miniseries on Reagans, International Her-
ald Tribune, November 5, 2003 (describing efforts of Republican National
Committee and right-wing groups). CBS sold the miniseries to Showtime, which
meant that the program went to 14 million homes instead of 180 million
homes. Both CBS and Showtime are owned by Viacom. Bill Carter, Shifting
Reagans To Cable Has CBS Facing New Critics, New York Times, November
5, 2003.
20. Frederick Schauer, Slippery Slopes, 99 Harvard Law Review 361,
36869, 37376 (1985). It is easy to confuse the slippery slope argument with
the argument concerning overbreadth. The slippery slope argument refers to the
192 | Notes to Chapter 6

scenario where a narrowly drawn rule may be susceptible to illegitimate expan-


sion later. In contrast, overbreadth presupposes the linguistic possibility of cur-
rently narrowing a rule in order to eliminate any danger cases. Id. at 36667.
21. Jeffrey Toobin, The Trouble With Sex, New Yorker, February 9, 1998,
at 48, 55.
22. Schauer, note 20 at 365.
23. Disclosure, Barry Levinson, dir. (1994).
24. Oliver Wendell Holmes, Jr., The Common Law (Boston: Little Brown,
1923) (1881), at 125 (discussing the necessity of continually conforming legal
standards to experience).
25. Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cam-
bridge: Harvard University Press, 1989), at 183.
26. Id. at 18182.
27. Evelyn Fox Keller, Reections on Gender and Science (New Haven: Yale
University Press, 1985), at 163.
28. Richard Rorty, Objectivity, Relativism, and Truth (New York: Cam-
bridge University Press, 1991), at 109.
29. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and
Reparations, 22 Harvard Civil RightsCivil Liberties Law Review 323, 324
(1987).
30. It is not possible for this or any other purpose simply to make a list of
actionable versions of oppression, particularly in this nation of minorities,
Regents of the University of California v. Bakke, 438 U.S. 265, 292 (1987),
where different groups enjoy greater or lesser societal opprobrium at different
times, and where ones own group memberships are neither singular nor static.
Nonetheless, [t]o conceptualize a condition called subordination is a legitimate
alternative to denying that such a condition exists. Mari J. Matsuda, Public
Response to Racist Speech: Considering the Victims Story, 87 University of
Michigan Law Review 2320, 2362 (1989). Of course, there are hard cases
from assimilated, afuent members of otherwise subjugated groups to scape-
goated white malesthat will especially require the painstaking consideration
described in the text. But there are also millions of paradigmatic cases in which
we all know exactly who were talking about. This is simply a call for taking
history and its group-based harms seriously; this is a call for an end to the
unknowing. Id. at 236274.
31. Degraffenreid v. General Motors Assembly Division, 413 F. Supp. 142,
143 (E.D. Mo. 1976), affd in part, revd in part, 558 F. 2d 480 (8th Cir. 1977).
32. Judge v. Marsh, 649 F. Supp. 770, 780 (D.D.C. 1986) (allowing plaintiff
to raise claim as a black woman but limiting theory by prohibiting plaintiffs
from relying on more than two subclasses protected by law, e.g., disallowing
women of color who are also disabled or members of religious minorities from
suing on all those grounds).
Notes to Chapter 6 | 193

33. 833 F.2d 1406 (10th Cir. 1987). Outside the sexual harassment context,
it appears that the rst court to recognize the discrimination claim of women of
color qua women of color was the Fifth Circuit. Jefferies v. Harris County Com-
munity Action Association, 615 F.2d 1025 (5th Cir. 1980).
34. Commentators generally have two criticisms of Hicks and the line of
cases of which it is part. First, in merely allowing evidence of racialized harass-
ment to be aggregated with other evidence to prove hostile-work-environment
sexual harassment, the Tenth Circuit did not actually recognize or honor the
experience of black women. Second, Hicks and related cases did not sufciently
contextualize the needs of women of color, so took tiny steps that appear ad
hoc, and failed to build a reliable platform for women of color in litigation.
Cathy Scarborough, Conceptualizing Black Womens Employment Experi-
ences, 98 Yale Law Journal 1457, 147071 n. 100 (1989); Kathryn Abrams,
Title VII and the Complex Female Subject, 92 Michigan Law Review 2479
(1994); Carole H. Hofstein, African American Women and the Limits of Law
and Society, 1 Cardozo Womens Law Journal 373, 391 92 and n. 110
(1994); Andrea L. Dennis, Because I Am Black, Because I Am a Woman: Rem-
edying the Sexual Harassment Experience of Black Women, 1996 Annual Sur-
vey of American Law 555, 573 77 (1996); Pamela J. Smith, Part II
Romantic PaternalismThe Ties That Bind: Hierarchies of Economic Oppres-
sion That Reveal Judicial Disafnity for Black Women and Men, 3 Journal of
Gender, Race and Justice 181, 21224 (1999).
35. 40 F. 3d 1551, 1562 (9th Cir. 1994) (citations omitted). At footnote 20
on page 1562, the court cites Kimberl Crenshaw, Demarginalizing the Inter-
section of Race and Sex: A Black Feminist Critique of Antidiscriminatory Doc-
trine, Feminist Theory and Antiracist Politics, 1989 University of Chicago
Legal Forum 139, and Judith A. Winston, Mirror, Mirror on the Wall: Title
VII, Section 1981 and the Intersection of Race and Gender in the Civil Rights
Act of 1990, 79 California Law Review 775 (1991).
36. Hicks v. Gates Rubber Company, 928 F. 2d 966, 972 73 (10th Cir.
1991) (discussing plaintiffs failure to mention specic evidence in EEOC l-
ing, describing supervisors conduct as boorish, belligerent and uncalled for,
and describing supervisors comments as a few isolated incidents of racial
enmity).
37. For example, some time ago Professor Charles Lawrence exposed the
stereotypes implicit and the harms unrecognized in the exception to First
Amendment coverage that was judicially manufactured for ghting words.
Charles R. Lawrence III, If He Hollars Let Him Go: Regulating Racist Speech
on Campus, 1990 Duke Law Journal 431, 44957 (1990).
38. I date the present storm to the case brought in Hawaii. Though the
Supreme Court of that state held that its Equal Rights Amendment required
same-sex marriage, Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), the people of
194 | Notes to Chapter 6

Hawaii amended their own Constitution to prohibit it. Nonetheless, the Hawaii
case led very quickly to the federal Defense of Marriage Act, note 39, infra.
39. The U.S. Senate defeated the Employment Non-Discrimination Act, S.
2056, 104th Cong. (1996), which would have prohibited employment discrimi-
nation on the basis of sexual orientation, by a vote of 49-50. 142 Cong. Rec.
S10,129 (daily ed. Sept. 10, 1996). The federal Defense of Marriage Act
(DOMA) passed the Senate on the same day by a vote of 85-14. 142 Cong. Rec.
S10, 138 39 (daily ed. Sept. 10, 1996). DOMA had previously passed the
House of Representatives by a vote of 342-67. 142 Cong. Rec. H7505 (daily ed.
July 12, 1996). DOMA denes marriage for federal law purposes as the union
of one man and one woman, and allows the states to refuse recognition of
same-sex marriages celebrated in other states. 1 U.S.C. 7 (2000); 28 U.S.C.
1738C (2000).
40. See Hicks, 928 F. 2d at 173. Also, the outrages that gave rise to the Uni-
versity of Michigan racial hate speech regulation were referred to as isolated
and purposeless acts. Doe v. University of Michigan, 721 F. Supp. 852, 854
(E.D. Mich. 1989). Similarly, after the massacre of fourteen women at the Ecole
Polytechnique in Montreal on December 6, 1989, the mainstream press consis-
tently portrayed it as a an anomalous and meaningless act, in spite of the facts
that the killer asked men to leave the room before shooting and left a letter
expressing his rage at feminists, listing the names of eighteen specic targets. See
Louise Malette and Marie Calouh, eds., The Montreal Massacre, Marlene
Wildeman, trans. (Charlottetown, P.E.I.: Gynergy Press, 1991).
41. The pornography civil rights ordinance is that authored by Andrea
Dworkin and Catharine MacKinnon, passed in three U.S. cities but halted in its
progress by the decision of the Seventh Circuit in American Booksellers Associ-
ation v. Hudnut, 771 F. 2d 323 (7th Cir. 1985), affd mem., 475 U.S. 1001
(1986).
42. For my analysis of how this syndrome demoralizes lawyers to keep them
out of the arena of progressive politics, see Ann Scales, Midnight Train to Us,
75 Cornell Law Review 710 (1990).
43. Though abortion is still a legal right, fewer and fewer women have
actual access to the procedure. See Ann Scales with Wendy Chavkin, M.D.,
Abortion, Law and Public Health, in Kary L. Moss, ed., Man-Made Medi-
cine: Womens Health, Public Policy, and Reform (Durham: Duke University
Press, 1996).
44. See Karen Barth Menzies, A Cure Worse Than The Disease, 41 Trial
20 (March 2005).
45. See for example Miller v. Pzer Inc., 196 F. Supp. 2d 1095 (D. Kan.
2002) (in addition to other failures of causal proof, plaintiff failed to present
sufcient epidemiological evidence).
46. In the case thought to have inaugurated the regime of strict liability for
Notes to Chapter 6 | 195

injuries caused by faulty products, Justice Roger Traynor of the California


Supreme Court stated:
As handicrafts have been replaced by mass production with its great mar-
kets and transportation facilities, the close relationship between the pro-
ducer and the consumer of a product has been altered. Manufacturing
processes, frequently valuable secrets, are ordinarily either inaccessible to
or beyond the ken of the general public. The consumer no longer has
means or skill enough to investigate for himself the soundness of a prod-
uct, even when it is not contained in a sealed package, and his erstwhile
vigilance has been lulled by the steady efforts of manufacturers to build
up consumer condence by advertising and marketing devices such as
trade-marks. . . .
Escola v. Coca Cola Bottling Co. of Fresno, 150 P. 2d 436, 467 (Traynor, J.
concurring).
47. On the issue of legal cause, the most familiar burden-shifting occasions
are those regarding alternative liability, as exemplied by Summers v. Tice,
199 P.2d 1 (Cal. 1948),and market share liability as exemplied by Sindell v.
Abbott Laboratories, 607 P.2d 924 (Cal. 1980). In torts, the doctrines of negli-
gence per se and res ipsa loquitur shift the burden in slightly different ways than
the explicit causal burden-shifting doctrines do. In any case, all of these judge-
created doctrines have worked pretty well; I see nothing to prevent courts from
developing other burden-shifting doctrines in order in order more fairly to con-
gure the causal problem in toxic torts cases.
48. There is disagreement about whether the common law can compensate
in situations where the but for test of causation is not technically satised.
One problem is that of future harms, involving whether plaintiffs can at present
recover anything, sometimes including damages for the fear of disease, for dam-
ages that they believe they will suffer because of a toxic exposure. Ordinarily,
plaintiffs cannot recover for the fear alone, Good Fund, Ltd.-1972 v. Church,
540 F. Supp. 510 (D.Colo. 1982), revd in part 703 F.2d 464 (10th Cir. 1982),
but a number of courts have begun to allow plaintiffs the costs of medical mon-
itoring in order to discover the onset of any eventual disease. See In Re Paoli R.
Yard PCB Litigation, 916 F.2d 829 (3d Cir. 1990). The other problem area is
the lost chance doctrine, usually malpractice cases where a misdiagnosis
reduced the chance of an already slim chance of recovery. See Lord v. Lovett,
770 A. 2d 1103 (N.H. 2001). In such cases, the emerging norm is odds-based
partial recovery. That was the remedy in the DES cases, as well, where the
problem of the impossibility of causal proofproof that tied any given manu-
facturer to any given plaintiffs damageswas solved by allowing a given plain-
tiff to recover from each named defendant the percentage of that plaintiffs
damages attributable to the share of a given defendants share of the relevant
market at the relevant time. That doctrine of market share liability has been
196 | Notes to Chapter 6

applied by only a few courts and to only a few other products: mineral spirits,
the gasoline additive MTBE, diphtheria-pertussis-tetanus (DPT) vaccine, blood
clotting proteins, lead paint, and asbestos brake pads. For an argument that
proportional liability should be expanded to include many other products, see
Allen Rostron, Beyond Market Share Liability: A Theory of Proportional
Share Liability for Nonfungible Products, 52 U.C.L.A. Law Review 151
(2004).
49. Among articles proposing burden-shifting rules or the creation of pre-
sumptions based upon failures to test or insufcient testing, see Margaret A.
Berger, Eliminating General Causation: Notes Toward a New Theory of Justice
and Toxic Torts, 97 Columbia Law Review 2117 (1997); Wendy E. Wagner,
Choosing Ignorance in the Manufacture of Toxic Products, 82 Cornell Law
Review 773 (1997); Rebecca S. Dresser, Wendy E. Wagner, and Paul C. Gian-
nelli, Breast Implants Revisited: Beyond Science on Trial, 1997 Wisconsin
Law Review 705 (1997).
50. Joseph Sanders, The Bendectin Litigation: A Case Study in the Life
Cycle of Mass Torts, 43 Hastings Law Journal 301 (1992).

notes to chapter 7

1. Daily Mirror (London), November 4, 2004, MGN, Ltd. (emphasis in


original), http://www.mirror.co.uk/news/allnews/page.cfm?objectid=14835905&
method=full&siteid=50143.
2. Randal C. Archibold, Shift Toward Skepticism for Civil Rights Panel,
New York Times, December 10, 2004, quoting Gerald A. Reynolds, named by
President George W. Bush as Chairman of the United States Civil Rights Com-
mission.
3. Joan Williams, From Difference to Dominance to Domesticity: Care as
Work, Gender as Tradition, 76 Chicago-Kent Law Review 1441, 1470 71
(2001). I do not mean unfairly to single out Professor Williams. The volun-
tarism she assumes, though I regard it as nave, enjoys a long and distinguished
history in U.S. thought. See Aileen S. Kraditor, The Radical Persuasion, 1890
1917: Aspects of the Intellectual History and the Historiography of Three
American Radical Organizations (Baton Rouge: Louisiana State University
Press, 1981), at 6671, 8890 (rejecting notion of false consciousness, stressing
segmented nature of American society).
4. For all of his quite moving anecdotalizing about his own history,
Thomas . . . effectively supplants a larger common history with individualized
hypotheses about free choice, in which each self chooses her destiny even if it is
destitution. Patricia J. Williams, Clarence X, in The Roosters Egg: On the
Persistence of Prejudice (Cambridge: Harvard University Press, 1995), at 131.
5. Kate Millett, Sexual Politics (Garden City, New York: Doubleday Books,
Notes to Chapter 7 | 197

1970), at 26: Hannah Arendt observed that government is upheld by power


support whether through consent or imposed through violence; conditioning to
an ideology amounts to the former. Sexual politics obtains consent through the
socialization of both sexes to basic patriarchal polities with regard to tempera-
ment, role, and status.
6. Among other defects in the liberal view is the assumption that equality
among individuals already exists, so that choice is equally a possibility for
everybody. The other major aw is that we are rational in our choices.
Rational choice theory is the name by which law and economics scholars
explain way too much. It is a model that takes the market as an aspect of
nature, and that does not imagine the currents of self-doubt, ambivalence,
oppression, confusion, and psychic need that batter us against the rocks of life.
Rational choice theory is not a particularly good account of the behavior of
either individuals or most groups. Even granting a measure of rationality, what
looks like the pursuit of self-interest may only make a virtue of necessity. T. J.
Jackson Lears, The Concept of Cultural Hegemony: Problems and Possibili-
ties, American Historical Review, vol. 90, Is. 3 (June 1985), 567, at 580.
7. See Erika Sussman, Contending with Culture: An Analysis of the Female
Genital Mutilation Act of 1996, 31 Cornell International Law Journal 193,
212 n. 127 (1998): [R]adical feminist scholars such as Catharine MacKinnon
argue that subjugated womens failure to recognize their oppression is merely a
function of their own ignorance.
8. Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cam-
bridge: Harvard University Press, 1989), at 11517.
9. Friedrich Engels, Letter to Franz Mehring, July 14, 1893, in Robert C.
Tucker, The Marx-Engels Reader (New York: Harper, 1972), at 64850: Ide-
ology is a process accomplished by the so-called thinker, but with a false con-
sciousness. The real motive forces impelling him remain unknown to him;
otherwise it simply would not be an ideological process.
10. Clinton Rossiter and James Lare, eds., The Essential Lippmann: A Polit-
ical Philosophy for Liberal Democracy (Cambridge: Harvard University Press,
1982) (1963); Edward L. Bernays, ed., The Engineering of Consent (Norman:
University of Oklahoma Press, 1955); Harold D. Lasswell, The Analysis of
Political Behaviour (Hamden, Conn.: Archon Books, 1966).
11. Thomas Frank, Whats the Matter with Kansas? How Conservatives
Won the Heart of America (New York: Metropolitan Books, 2004), at 1 2:
This species of derangement is the bedrock of our civic order; it is the founda-
tion on which all else rests.
12. It does work. John T. Jost, Negative Illusions: Conceptual Clarication
and Psychological Evidence Concerning False Consciousness, Political Psy-
chology, vol. 16, no. 2, 1995, at 397.
13. In disciplines from Marxism to postcolonial theory, the mechanisms of
198 | Notes to Chapter 7

ideology consistently are described as including false belief in the naturalness


(versus social construction) of the social order, the necessity (as opposed to con-
tingency) of the social order, the universality (as opposed to partiality) of the
social order, and the superiority of the values embraced by the social order,
including beliefs on the part of the oppressed that they deserve to be oppressed.
14. Habermas stressed the failure of particular widely held beliefs to with-
stand intense intersubjective discussion. Jrgen Habermas, Knowledge and
Human Interests, Jeremy J. Shapiro, trans. (Boston: Beacon Press, 1971).
15. Gramsci went on to say that this consent is historically caused by the
prestige (and consequent condence) which the dominant group enjoys because
of its position and function in the world of production. Antonio Gramsci,
Selections from the Prison Notebooks, Quentin Hoare and Geoffrey Nowell
Smith, eds. and trans. (New York: International Publishers, 1971), at 12.
16. The person in the mass has a contradictory consciousness, one that
unites him with his fellows in interest, and another that he has inherited from
his past and that he uncritically absorbs. Neither is necessarily conscious, but
the contradiction tends a person to political passivity. Lears, note 6, at 570.
17. Michael Hardt and Antonio Negri, Empire (Cambridge: Harvard Uni-
versity Press, 2000), at 33.
18. Noam Chomsky, The Manufacture of Consent (1984), in The Chom-
sky Reader, James Peck, ed. (New York: Pantheon Books, 1987), at 132.
19. Hardt and Negri, note 17, at 1617. An excellent recent analysis by a
legal scholar of the role of exceptionalism in legal justication is Kim Lane
Sheppele, Law in a Time of Emergency: States of Exception and the Tempta-
tions of 9/11, 6 University of Pennsylvania Journal of Constitutional Law
1001 (2004).
20. Hardt and Negri, note 17, at 189.
21. Chomsky, note 18, at 126.
22. Adrienne Rich, Forward: On History, Illiteracy, Passivity, Violence, and
Womens Culture, in On Lies, Secrets and Silence: Selected Prose, 19661978
(New York: W. W. Norton, 1979), at 11.
23. Denise Myerson, False Consciousness (New York: Oxford University
Press, 1991), at 34.
24. Pretty Woman, Garry Marshall, dir. (1990). Jane Caputis analysis of
that movie compares it with Julia Robertss next movie, wherein she was stalked
by her battering husband. See Jane Caputi, Sleeping with the Enemy as Pretty
Woman Part II? in Goddess and Monsters: Women, Myth, Power and Popular
Culture (Madison: University of Wisconsin/Popular Press, 2004), at 37 (describ-
ing the two lms as portraits of successive phases in the same abusive relation-
ship).
25. Lears, note 6, at 573.
26. MacKinnon, Toward a Feminist Theory of the State, note 8, at 115.
Notes to Chapter 7 | 199

27. Postmodern philosophy expands upon this critique of ideology by


problematizing the subject, that is, by emphasizing the uidity (if not incoher-
ence) of the notion of a self that can have any interests, true or false. In addi-
tion, the postmodern critique particularly in the work of Foucault em-
phasizes the spiraling relationship between truth and power. They produce and
sustain each other, so that questions of truth are always political questions
and vice versa. Michel Foucault, Power/Knowledge: Selected Interviews and
Other Writings, 1972 1977, Colin Gordon, ed. and trans. (New York: Pan-
theon Books, 1980), at 85.
28. David Brooks, The Triumph of Hope Over Self-Interest, New York
Times, January 12, 2003.
29. Indeed, there is a residue of Cold War mentality infusing debates about
false consciousness, particularly because the notion emerged from classical
Marxism. A critique of the objective point of view implicit in the false con-
sciousness charge is even easier to sustain against the determinism of Marxist
thought. That is, Marx and those strictly in the Marxist tradition, such as Anto-
nio Gramsci, believed in materialism as the basis of society, and believed that
history was inexorably moving toward the workers revolution.
30. Herbert Marcuse, One-Dimensional Man: Studies in the Ideology of Ad-
vanced Industrial Society (Boston: Beacon Press, 1966) (1964), at 56.
31. J. C. Smith and Carla Ferstman, The Castration of Oedipus: Feminism,
Psychoanalysis, and the Will to Power (New York: New York University Press,
1996).
32. For Marx, while the oppressed workers were caught up in the illu-
sions of a certain stage of capitalism, their self-consciousness could not fully
develop. Thus, only when capitalism had reached a certain stage of contradic-
tion, only when conditions were ripe, could the people break free. In any case,
the proletariat had to change itself and its circumstances rather than being
changed by hierarchical leadership. See The Marx-Engels Reader, note 9, at
108. Among the conundrums of the Russian Revolution was that Russian capi-
talism was underdeveloped from a Marxist point of view. The Russian pro-
letariat was just emerging, and ostensibly required leadership to develop its
consciousness.
33. According to Sandra Lee Bartky, the achievement of femininity is to
inferiorize oneself in various ways, including to mark ones own body as
something to be looked at by men, and to embrace one side of a polarity know-
ing that it is the devalued side. Sandra Lee Bartky, Femininity and Domination:
Studies in the Phenomenology of Oppression (New York: Routledge, 1990).
34. From this identication [with their men] follows the belief of women
born of, or married (legally or not) to bourgeois men that they are themselves
bourgeois. This is false consciousness. They do not participate in the privileges
of their mens class, whatever they may think. Christine Delphy, Close to
200 | Notes to Chapter 7

Home: A Materialist Analysis of Womens Oppression, Diana Leonard, ed. and


trans. (London: Hutchinson/Explorations in Feminism Collective, 1984), at
129130.
35. Liz Stanley and Sue Wise, Breaking Out: Feminist Consciousness and
Feminist Research (London, Boston: Routledge and K. Paul, 1983), at 11920.
36. See Williams, note 3, at 147071 (citation omitted):
[G]ender is not just a power differential between men and women. In fact,
gender plays diverse roles in creating meaning in peoples lives. . . . Gen-
der provides rich cultural imagery most people nd a convenient meta-
phoric. Gender is one of the metaphors we live by; it can carry so many
loads of cultural meaning that the prospect of persuading people to aban-
don it seems slim indeed. . . . Gender is unbending not only because of its
innite availability as a metaphor but because it intertwines gender roles
with attractive ideals, as when domesticity links the economic and social
marginalization of mothers with mothers dreams for their children.
37. Chomsky, note 18, at 136. See also Hardt and Negri, note 17, at 156:
Truth will not make us free, but taking control of the production of truth
will.
38. Alice Walker, Possessing the Secret of Joy (New York: Pocket Books,
1992), at 279.

notes to chapter 8

1. The Citadel, a military institution in South Carolina akin to the Virginia


Military Institute, was also judicially compelled to admit female cadets. Faulker
v. Jones, 51 F. 3d 440 (4th Cir.), cert. denied, 516 U.S. 938 (1995). Professor
Valorie Vojdik, who was counsel to Ms. Faulkner in the Citadel litigation, thor-
oughly describes the brutal yet shrill masculinity at work in the military school
controversies. Valorie J. Vojdik, Gender Outlaws: Challenging Masculinity in
Traditionally Male Institutions, 17 Berkeley Womens Law Journal 68 (2002);
At War: Narrative Tactics in the Citadel and VMI Litigation, 19 Harvard
Womens Law Journal 1 (1996). In a scathing account of the culture of the
Citadel, Susan Faludi describes a submerged gender battle, a bitter but de-
nitely xed context between the sexes, concealed from view by the fact that men
played both parts. Susan Faludi, The Naked Citadel, New Yorker (Septem-
ber 5, 1994), at 70. Pat Conroy wrote an absorbing ctionalized account of his
Citadel education. In one passage, he said:
The entire design of our education . . . demanded a limitless conformity
from its sons, and we concurred blindly. We spent our four years as pas-
sionate true believers, catechists of our harsh and spiritually arctic milieu,
studying, drilling, arguing in the barracks, cleaning our rooms, shining
our shoes, writing on the latrine walls, writing papers, breaking down our
Notes to Chapter 8 | 201

ries, and missing the point. The Institute was making us stupid; irretriev-
ably, tragically, and innitely stupid.
Pat Conroy, The Lords of Discipline (Boston: Houghton Mifin, 1980) (Bantam
ed., 1982), at 8081. This quote speaks to me not only of the depleting effects
of militarism but of popular culture and most educational systems.
2. United States v. Virginia, 518 U.S. 515 (1996) (Virginia Military Institute
ordered to admit females as cadets).
3. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (exclusion of jurors
on basis of sex violates Equal Protection clause). J.E.B. cited Batson v. Ken-
tucky, 476 U.S. 79 (1986), the case in which an African-American defendant
charged with burglary and receipt of stolen goods successfully challenged the
peremptory exclusion of all African-Americans from the jury.
4. 511 U.S. at 149 (OConnor, concurring).
5. The phrase is the title of the generative work on this issue. Judith Butler,
Gender Trouble: Feminism and the Subversion of Identity (New York: Rout-
ledge, 1990).
6. Id. at 3.
7. 523 U.S. 75 (1998) (allowing same-sex sexual harassment claim to pro-
ceed).
8. For one of the published versions of this argument, see Janet Halley,
Sexuality Harassment, in Catharine A. MacKinnon and Reva B. Siegel, eds.,
Directions in Sexual Harassment Law (New Haven: Yale University Press,
2004), at 183.
9. A gem in this genre is the case in which a childs father who claimed that
the mother had practiced contraceptive fraud brought a claim against her for,
among other things, conversion of his sperm. Wallis v. Smith, 22 P. 3d, 683, 683
(N.M. App. 2001) (dismissing all of the fathers claims).
10. Marc Spindelman, Sex Equality Panic, 13 Columbia Journal of Gen-
der and Law 1 (2004).
11. Referring specically to how she imagines cultural feminism would
respond to a specic vignette in the Hill-Thomas hearings, Professor Halley
states: It thinks that a man who would joke to a female subordinate at work
about pubic hairs appearing on his Coke can has shown himself unt for high
ofce. Its easily offended; it is schoolmarmish, judgmental, self-righteous.
Janet Halley, Sexuality Harassment, in Wendy Brown and Janet Halley, eds.,
Left Legalism and Left Critique (Durham: Duke University Press, 2002), at 89.
12.
Halleys normative enthusiasm for the pleasures of sexual hierarchy risks
making it seem that the sexual subordination forced upon members of
these groups is the product of our own unwillingness to pursue the hierar-
chical pleasures we should. From this its a small step to claiming that our
social subordination is a matter of our own choosing.
202 | Notes to Chapter 8

Marc Spindelman, Discriminating Pleasures, in Directions in Sexual Harass-


ment Law, note 8 at 211.
13. Ms. Jespersen said that wearing the makeup made her feel sick, de-
graded, exposed and violated. She said that the casino was forcing her to be
feminine, and to become a sexual object, and that this interfered with her job
performance. As a bartender, she said, she had to deal with unruly, intoxicated
guests, and the makeup took away [her] credibility as an individual and as a
person. Jespersen v. Harrahs Operating Company, Inc., 392 F.3d 1076, 1077
(9th Cir. 2004), rehearing en banc granted, 409 F.3d 1061 (9th Cir. 2005).
14. 392 F.3d at 1077 (emphasis added).
15. Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en
banc); Nicholas v. Azteca Restaurant Entertainment, Inc., 256 F.3d 864 (9th
Cir. 2001).
16. 490 U.S. 228 (1989).
17. Whereas it is difcult for judges to imagine how it could be unlawful for
men to dictate how women look, the same judges understand the injury in the
Rene and Nichols cases. Consider this thought experiment: if all members of
Congress had to conform for a day with the standards Harrahs imposed on
male serversshort haircuts, trimmed ngernails, no makeup, and no colored
nail polish I suspect Hillary Clinton and Cynthia McKinney and company
could hang with it. However, never in my lifetime would every member of Con-
gress (publicly) wear stockings, mascara, blush, and colored lipstick (though
many already wear their hair teased, curled, or styled). The male members
just dont want other people to perceive them as girls. Hence, the epigraph from
Professor Rorty at the beginning of this chapter. Richard Rorty, Feminism and
Pragmatism, 30 Michigan Quarterly Review 231, 234 (1992).
18. 392 F. 3d at 1086.
19. The problem of grooming doctrine is illustrated by the panels reasoning
in Jespersen. The majority upheld the trial courts grant of summary judgment
to Harrahs on the grounds that Ms. Jespersen had not shown that the Personal
Best brand standard either discriminated against her on the basis of immutable
characteristics associated with her sex or that the Personal Best brand standard
had imposed unequal burdens on men and women in Harrahs employ. On the
rst ground, the majority opinion capitulates to an unexamined notion of equal-
ity, that equality means only freedom from disadvantage based upon immutable
characteristics. Thus, while ones biological sex is prima facie immutable, how
one wears ones hair or paints ones face is always subject to change, hence, not
part of what Congress was getting at in prohibiting employment discrimination
because of sex. On the second ground, the court indicated that the plaintiff
might have gotten to trial had she produced evidence of a sufcient differential
cost of makeup for females, as opposed to neat haircuts for males. 392 F. 3d at
1081. The grooming cases and the nest of related issuesstereotyping, identity
Notes to Chapter 8 | 203

politics, subordination, and self-determinationare usefully treated in a collec-


tion of essays by Robert C. Post, with K. Anthony Appiah, Judith Butler,
Thomas C. Grey, and Reva B. Siegel, Prejudicial Appearances: The Logic of
American Antidiscrimination Law (Durham: Duke University Press, 2001).
20. Professor MacKinnon made this point in various ways in her amicus
brief in Oncale, published at 8 U.C.L.A. Womens Law Journal 9 (1997), a text
I often assign my students as an exemplar of how theory meets practice. The
Courts opinion in Oncale was actually pretty low-key and authored by noted
homophobe Justice Scalia. Perhaps the closest the Court came to embracing
MacKinnons position was in stating:
[H]arassing conduct need not be motivated by sexual desire to support an
inference of discrimination on the basis of sex. A trier of fact might rea-
sonably nd such discrimination, for example, if a female victim is ha-
rassed in such sex-specic and derogatory terms by another woman as to
make it clear that the harasser is motivated by general hostility to the
presence of women in the workplace.
523 U.S. at 80. I believe this is much like saying, Title VII is violated when any-
one in the workplace interferes with other workers by attempting to enforce
gender hegemony, a result I think most queer theorists would applaud.
21. Butler, Gender Trouble, note 5 at viii.
22. N.M.S.A. 1978, 28-1-2 (Q). Concomitantly, sexual orientation
means heterosexuality, homosexuality or bisexuality, whether actual or per-
ceived. N.M.S.A. 1978, 28-1-2 (P). New Mexico became the fourteenth state
to prohibit sexual orientation discrimination in housing, employment, credit,
etc., and only the third state to prohibit gender identity discrimination in the
same contexts.
23. That is, some legislators asked why they shouldnt just rewrite the hu-
man rights law to say you cant unfairly discriminate? I viewed this question
as a manifestation of privileged ignorance. Each of the categories in antidiscrim-
ination laws, including New Mexicos, refers to a demonstrable history of mis-
treatment of people based upon their membership in one or more of the
enumerated groups. Addressing the history is more important than the fact that
the groups cant always be precisely dened. On the other hand, particularly
here in the United States, we are dreadfully hung up on the list of categories.
But that neednt be so, as demonstrated, for example, in Canadian law. As
explained in chapter 4, Canadian law enumerates the predictable historical cate-
gories, but explicitly recognizes that those group categorizations are not all
there is to unfair discrimination. And Canada does this in a way that engages in
the interplay of legal xity and cultural uidity. Particularly in comparison with
U.S. judges, the Canadian judges seem fearless. See Sarah K. Harding, Com-
parative Reasoning and Judicial Review, 28 Yale Journal of International Law
409 (2003).
204 | Notes to Chapter 8

24. Though there is no record of these conversations with legislators, they


were reminiscent of some hypothetical questions raised by a doctor in Louis-
ville, Kentucky, who brought a declaratory judgment action on many constitu-
tional grounds in a losing effort to preclude enforcement of that citys and
countys similarly worded prohibitions on gender identity discrimination:
What is meant by manifesting, identity traditionally associated, and bio-
logical maleness or femaleness, is simply impossible to tell from the face of
either Ordinance. Does manifesting mean pretending? Does identity mean an
identity at any time, a permanent identity, or a temporary identity? Plaintiffs
Motion for Summary Judgment in Hyman v. City of Louisville, 132 F. Supp. 2d
528, 546 (W.D. Ky. 2001).
25. Hispanic AIDS Forum v. Estate of Bruno, 792 N.Y.S.2d 43, 47 (App.
Div. 2005) (interpreting New York City Human Rights Law that included in
denition of gender a persons behavior whether or not consistent with birth
sex); see also Goins v. West Group, 635 N.W.2d 717 (Minn. 2001) (same result
under state prohibition); but see Kastl v. Maricopa County Community College
District, 2004 WL 2008954 (D. Ariz. 2004) (federal sex discrimination claim
stated against a policy requiring transsexual to prove completion of sex reas-
signment surgery before allowing her to use womens restroom).
26. Kastl, 2004 WL 2008954, at 3.
27. To date, most transgender and intersex cases have been disability cases.
These are matters involving medical funding for the costs of Gender Identity
Disorder and/or for the costs of transition from male-to-female or vice versa.
Another class of cases is about the protection of the condentiality of transsexu-
als. An example of the latter class of cases is Powell v. Schriver, 175 F.3d 107,
11112 (2d Cir. 1999) (citations omitted), a case upholding the right of a male-
to-female transsexual, incarcerated in a womens prison, not to have her trans-
sexual status disclosed. As the court stated:
Individuals who have chosen to abandon one gender in favor of another
understandably might desire to conduct their affairs as if such a transition
was never necessary. . . . The excrutiatingly private and intimate nature of
transsexualism, for persons who wish to preserve privacy in the matter, is
really beyond debate. . . . [Another case describes] transsexualism as a
gender identity disorder, the sufferers of which believe that they are cru-
elly imprisoned within a body incompatible with their real gender iden-
tity, and noting that [t]he disorder is commonly accompanied by a
desire to change ones anatomic sexual features to conform physically
with ones perception of self. . . . It is similarly obvious that an individ-
ual who reveals that she is a transsexual potentially exposes herself . . .
to discrimination and intolerance.
The question for queer politics/law is how to reconcile what the court calls the
excruciatingly private nature of transsexualism with the injunction toward a
Notes to Chapter 8 | 205

political program of repetitive and public subversion, proliferating gender con-


gurations [and] destabilizing substantive identity, demonstrating that gender
is open to splittings, self-parody, self-criticism, and those hyperbolic exhibi-
tions of the natural that, in their very exaggeration, reveal its fundamentally
phantasmatic status. Butler, Gender Trouble, note 5 at 146.
28. Geduldig v. Aiello, 417 U.S. 484 (1974) (state workers disability pro-
gram that excluded coverage for pregnancy did not constitute sex discrimina-
tion). Professor Wendy Williams was counsel for the plaintiffs in this historic
case.
29. Butler, Gender Trouble, note 5 at 148 (emphasis added).
30. Judith Butler, The Force of Fantasy: Feminism, Mapplethorpe, and
Discursive Excess, in Drucilla Cornell, ed., Feminism and Pornography (New
York: Oxford University Press, 2000), at 504.
31. See comment of Professor Vicki Schultz in Karen Engle, Elizabeth M.
Schneider, Vicki Schultz, Nathaniel Berman, Adrienne Davis, and Janet Halley,
Round Table Discussion: Subversive Legal Moments? 12 Texas Journal of
Women and Law 197, 203 (2003):
[T]he formal law itself, in the sense of a Supreme Court decision, cannot
be subversive. Law in this sense cannot be anything, really, on its own.
But law is an important arena of struggle in our society, one in which the
social movements of the twentieth century have invested a great deal of
energy.
32. Although most lawyers wouldnt use Judith Butlers language, many
would agree with her assertion that the constitutive identications of an auto-
biographical narrative are always already partially fabricated in the telling.
Butler, Gender Trouble, note 5 at 67.
33. Id. at 47.
34.
The assimilation/resistance opposition is often critiqued as overly simplis-
tic, a criticism applicable to most dichotomies. . . . When the issue is sim-
ply stated, it often involves pie: whether the object of our struggles is
obtaining a (bigger) piece of the pie or whether we are challenging the
way the pie is cut, who has the power to cut it, or even the entire notion
of pie.
Ruthann Robson, Introduction: Assimilation and/or Resistance? 1 Seattle
Journal for Social Justice 631 (2003) (citation omitted).
35. Angela P. Harris, Race and Essentialism in Feminist Theory, 42 Stan-
ford Law Review 581 (1990).
36. Id. at 582.
37. Id. at 581, quoting Jorge Luis Borges, Funes the Memorious, in Lab-
yrinths: Selected Stories and Other Writings (Daniel A. Yates and James E. Irby,
eds.) (New York: Modern Library, 1983) (1964), at 59.
206 | Notes to Chapter 8

38. See, for example, Cass R. Sunstein and Martha C. Nussbaum, eds., Ani-
mal Rights: Current Debates and New Directions (New York: Oxford Univer-
sity Press, 2004).
39. Judith Butler, Undoing Gender (New York: Routledge, 2004), at 816
(endorsing the pursuit of equality in livable lives). Some poststructuralist the-
orists seem to incorporate philosopher Friedrich Nietzsches conclusion that
altruism is a self-delusory and/or self-aggrandizing afiction. See Professor Hal-
leys remarks in Round Table Discussion, note 31, at 22528, 242 (invoking
feminisms will to power).
40. See remarks of Professor Halley, id. at 225.
41. See for example, Ruthann Robson, Lesbian (Out)Law: Surviving Under
the Rule of Law (Ithaca: Firebrand Books, 1992); Ruthann Robson, Assimila-
tion, Marriage, and Lesbian Liberation, 75 Temple Law Review 709 (2002).
42. Maher v. Roe, 432 U.S. 464, 479 n. 11 (1977) (upholding restrictions on
use of public funds for nontherapeutic abortions). See also Harris v. McRae,
448 U.S. 297 (upholding restrictions on use of public funds even for therapeutic
abortions).
43. The Defense of Marriage Act is rationally related to the legitimate gov-
ernment interest of encouraging procreation, or of encouraging the creation
of stable relationships that facilitate rearing children by both biological par-
ents. . . . Because procreation is necessary to perpetuate humankind, encour-
aging the optimal union for procreation is a legitimate government interest.
Smelt v. County of Orange, 374 F. Supp. 2d 861, 879 (C.D. Cal. 2005) (cita-
tions omitted) (abstaining from question of constitutionality of state one man/
one woman marriage statute, but upholding constitutionality of federal one
man/one woman denition of marriage).
44. In the case that upheld the Florida statute that prohibits adoption by
homosexuals, the United States Court of Appeals for the Eleventh Circuit relied
not only on the rationale that stability for children can be best provided by an
opposite-sex couple but also on the vital role that dual-gender parenting plays
in shaping sexual and gender identity and in providing heterosexual role model-
ing. Lofton v. Sec. of Dept of Children & Family Services, 358 F. 3d 804,
81819 (11th Cir. 2004), rehearing en banc denied, 377 F. 3d 1275 (11th Cir.
2004), cert. denied 125 S. Ct. 869 (2005).
45. Lawrence v. Texas, 539 U.S. 558 (2003) (right of privacy extends to pri-
vate consensual homosexual activity), overruling Bowers v. Hardwick, 478 U.S.
186, 194 (1986) (claim of constitutional right to engage in homosexual sex is
at best, facetious).
46. Lynn Barnhill, Gentlemen Prefer Fetuses, nal paper in Feminist Juris-
prudence seminar, University of New Mexico Law School, 1991.
47. See Stenberg v. Carhart, 530 U.S. 914 (2000) (invalidating state prohibi-
Notes to Chapter 8 | 207

tion on specic abortion practices due to lack of exception for saving life of the
mother).
48. Webster v. Reproductive Health Services, 492 U.S. 490, 560 (1989)
(Blackmun, J., concurring in part and dissenting in part).
49. Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmuns
Supreme Court Journey (New York: Times Books, 2005), at 207.
50. Id. at 209.
51. Id. at 22125.
52. Rorty, Feminism and Pragmatism, note 17 at 237, n. 17.
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Index

Abortion, 3031, 111112, 114, Batson v. Kentucky, 201n3


147150 Bayes, Thomas, 171n38
Abrams, Kathryn, 184n34 Bendectin, 54, 55, 60
Adams, John, 153n1 Bender, Leslie, 171n48
Afrmative action, 40, 75, 94 Benedi v. McNeil-P.P.C., Inc., 169n21
Allen, Jessie, 153n1 Bentham, Jeremy, 42
Ambach v. Norwick, 176n22 Berger, Margaret A., 172n40, 196n49
American Booksellers Association, Berkeley, Bishop George, 39
Inc. v. Hudnut, 164n22, 194n41 Berman, Mitchell N., 177n28
Andrews v. Law Society of British Berman, Nathaniel, 205n31
Columbia, 178n37 Bernal v. Fainter, 176n22
Angell, Marcia, 56, 175n15 Bernays, Edward L., 197n10
Antidepressants, 60, 116 Bersch, Blanche, 135
Anti-subordination theory, 9, 95, Beschle, Donald L., 178n36
184n36 Best, Arthur, 175n9, 175n10, 175n11,
Appiah, K. Anthony, 93, 202n19 175n12
Archibold, Randal C., 196n2 Bikilen, Molly, 171n32
Arendt, Hannah, 196n5 Black, Bert, 171n36
Aristotle, 39, 41, 70, 78, 84, 116, Black, Hugo, 3637
187n55 Blackmun, Harry, 149151
Armitage, Richard, 157n11 Blanchard v. Eli Lilly & Co., 169n21
Atkins v. Virginia, 162n2 Bloomquist v. Wapello County,
Augusta National, 68 169n21
Austin, John, 25 Borges, Jorge Luis, 145, 163n13
Borgo, John, 171n37
Baehr v. Lewin, 193n38 Bowers v. Hardwick, 206n45
Ballard v. United States, 167n12 Boykin, William, 167n11
Barnes, Jake, 175n9, 175n10, Bradford Hill, Austin, 5760
175n11, 175n12 Bradwell v. Illinois, 103, 182n18
Barnhill, Lynn, 206n46 Breast implants 56, 6768
Bartky, Sandra Lee, 199n33 Brelis, Matthew, 151n5

209
210 | Index

Breyer, Stephen, 2526, 49, 127 Cay v. Louisiana Department of


Brint, Michael, 154n16, 164n30 Transportation and Development,
Brooks, David, 199n28 183n24
Brooks, Rosa Ehrenreich, 157n10 Chamallas, Martha, 1, 155n20,
Brooks v. Canada Safeway Limited, 173n48
178n38 Charo, R. Alta, 173n49
Brown, Jerry, 136 Chavkin, Wendy, 194n43
Brown, Wendy, 201n11 Chen, Alan K., 162n47
Brown v. Board of Education, Cherokees, 2526
174n5 Chomsky, Noam, 126, 135, 198n21
Bunge, Mario, 168n18 Choundrhry, Sujit, 185n38
Burnyeat, Miles F., 163n20 Clark v. Thompson, 158n18
Bush, George H. W., 122 Clinton, Hillary, 202n17
Bush, George W., 19, 101, 121 Clinton, William, 18
Bush v. Gore, 26 Collier, Peter, 154n7
Butler, Judith, 142144, 164n24, Conroy, Pat, 200n1
184n37, 186n52, 201n5, 202n19, Conway-Jones, Danielle, 168n18
206n39 Cooper v. Aaron, 26
Buttereld, Fox, 153n6 Cooperman, Alan, 188n64
Buyer, Stephen, 18 Cornell, Drucilla, 2, 164n24
Coulter, Ann, 106
Cain, Patricia A., 153n2 Cox, Archibold, 174n5
Calebresi, Guido, 174n50 Craig v. Boren, 180n4
Calmore, John O., 18650 Crenshaw, Kimberl, 111
Calouh, Marie, 194n40 Crisp, Roger, 165n36
Campbell, Joseph, 180n50 Cronkite, Walter, 126
Canada: equality doctrine, 7476;
group characterization, 203n23; Daily Mirror, 21
purposiveness, 31 Dao, James, 188n65
Cano v. Everest Minerals Corp., Dartmouth/Halifax County Regional
169n21 Housing Authority v. Sparks,
Caputi, Jane, 182n17, 189n72, 174n6
198n24 Davey, Monica, 189n68
Carnap, Rudolf, 172n38 Davis, Adrienne, 205n31
Carothers, Thomas, 157n8, 157n9 Davis, Judy, 106
Carroll, Lewis, 63 Daubert v. Merrill Dow Pharmaceuti-
Carson, Rachel, 167n16 cals, 52
Carter, Bill, 191n19 de Beauvoir, Simone, 97, 133, 183n23
Carter, Jimmy, 97 Degraffenreid v. General Motors
Cave, Damien, 188n61, 188n64, Assembly Division, 192n31
188n65 Deism, 167n10
Index | 211

Delphy, Christine, 199n34 Escola v. Coca Cola Bottling Co. of


DeLuca v. Merrell Dow Pharmaceuti- Fresno, 194n46
cals, 170n27 European Union, 9, 60, 95
de Man, Paul, 135
Dennis, Andrea L., 193n34 Fallon, Richard H. Jr., 155n1, 160n34
Derrida, Jacques, 39, 135 Faludi, Susan, 186n46, 200n1
DES, 58, 60, 66, 170n26, 195n48 Farber, Daniel, 182n16
de Saussure, Ferdinand, 138 Farley, Anthony Paul, 187n56
Descartes, Ren, 39 Faulkner v. Jones, 200n1
Dewey, John, 4445 Faulkner v. Ontario, 174n6
Dicey, A. V., 27 Fausto-Sterling, Anne, 180n1
Dickson, Brian, 75 Federalist Papers, 174n3
Dinnerstein, Dorothy, 187n59 Fell, Margot S., 191n15
Disclosure, 107 Feminism: general description, 710,
Doe v. University of Michigan, 83; history in U.S. law, 8488;
194n40 method applied to mass torts,
Dothard v. Rawlinson, 181n8 115118; toxic torts and women,
Douglas, Michael, 107 6061
Dow, David R., 155n19 Fen-phen, 60
Dresser, Rebecca S., 196n49 Ferstman, Carla, 199n31
Drobac, Jennifer Ann, 166n4 Files, John, 188n63
Dunn v. Sandoz Pharmaceuticals Fineman, Martha Albertson, 178n44
Corp., 172n43 Finley, Lucinda M., 168n20, 171n33,
Dworkin, Andrea, 79, 102, 159n23, 171n34, 171n35, 173n48
162n9, 191n14, 194n41 Fisher, William W. III, 154n12
Dworkin, Ronald, 4345, 84 Fiss, Owen M., 186n49
Fletcher, George P., 155n1
East Harlem Young Womens Leader- Folger, Tim, 170n23
ship School, 73 Folie v. Connelly, 176n22
Ebel, David M., 154n11 Forsyth v. Eli Lilly and Co., 169n21
Edwards, Harry T., 154n11 Foucault, Michel, 163n13, 199n27
Egan v. Canada, 177n30 Fox News Network, LLC. v. Penguin
Egilman, David, 171n32 Group, 191n17
Ehrenreich, Nancy, 186n51 Frank, Manfred, 164n23
Engels, Friedrich, 124 Frank, Thomas, 187n11
Engle, Karen, 205n31 Frankel, Charles, 176n18, 176n24
Enloe, Cynthia, 189n70 Franken, Al, 106
Epidemiology, 5461 Frankfurt School, 125
Equality: Canadian principles of, Franklin, Benjamin, 167n10
7476; versions of, 6974 Free will, 4748
Equality New Mexico, 142143 Freud, Sigmund, 87, 97
212 | Index

Frug, Mary Joe, 2 Hart, H. L. A., 4243, 160n36,


Fuller, Lon L., 2731, 103 171n37
Hawking, Stephen W., 182n21
Gallie, W. B., 3839, 46, 206n38 Hegel, G. W. F., 39
Garrett v. Board of Education of the Heisenberg, Werner, 87, 115
School District of the City of Henderson, Michael, 186n46
Detroit, 176n25 Henry, Robert, 34
Geduldig v. Aiello, 143, 178n38, Hersch, Seymour M., 158n15
181n8, 185n41 Hicks v. Gates Rubber Company,
Gender mainstreaming, 9, 95 110
General Electric Company v. Gilbert, Hill v. Colorado, 30
176n23 Hinduism, 49
Geneva Conventions, 19 Hiroshima, 55
Georgia v. Ashcroft, 177n29 Hispanic AIDS Forum v. Estate of
Giannelli, Paul C., 191n9 Bruno, 204n25
Gilmore, Grant, 180n2 Hoare, Quentin, 198n15
Ginsburg, Ruth, 137 Hocevar v. Purdue Frederick Co.,
God, existence of, 4850 186n46
Goins v. West Group, 204n25 Hofstein, Carole H., 193n34
Goldilocks, 69 Hollander v. Sandoz Pharmaceutical
Gonzales, Albert R., 158n14 Corp., 169n21
Good Fund, Ltd.1972 v.Church, Holmes, Oliver Wendell Jr., 5, 3233,
195n48 192n24
Gordon, Colin, 199n27 Honor, Tony, 171n37
Gordon, Jane, 188n65 hooks, bell, 187n56
Gould, Carol, 8586, 183n29 Horwitz, Morton, 154n12, 160n32,
Grabb, William C., 175n13 182n21
Gramsci, Antonio, 125, 199n29 Hume, David, 39, 45, 5256, 165n31
Greenhouse, Linda, 150 Hunter, Anne M., 176n21
Greenland, Sander, 171n31, 171n35 Hursthouse, Rosalind, 165n36,
Grey, Thomas C., 6, 184n37, 202n19 187n55
Guttmann, J. Michele, 174n2 Hutcheson, Allan C., 155n1
Huxley, Aldous, 96, 190n2
Habermas, Jrgen, 198n14 Hyde, Henry, 18
Halley, Janet, 3, 139, 190n4, 201n11, Hyman v. City of Louisville, 204n24
205n31, 206n39, 206n40 Hymowitz v. Eli Lilly and Company,
Harding, Sandra, 181n14 174n8
Harding, Sarah K., 185n38, 203n23
Hardt, Michael, 127, 161n38, In re Agent Orange Product Liability
200n37 Litigation, 169n21, 170n25
Harris, Angela, 145146, 187n56 In re Breast Implant Litigation,
Harris v. McRae, 206n42 169n21, 171n30
Index | 213

In re Hanford Nuclear Reservation Kendall, David E., 156n7


Litigation, 169n21 Kennedy, David M., 188n66
In re Paoli R. Yard PCB Litigation, Kennedy, Duncan, 27, 43, 162n8,
195n48 164n25, 165n28
In re Phenylpropanolamine (PPA) Kerber, Linda K., 173n48
Products Liability Litigation, Kessler, David, 175n15
172n42 Kim, Joyce, 171n32
In re Silicon Breast Implants Products Kirk v. Washington State University,
Liability Litigation, 169n21 178n45
Intersectional claims, 110111, Koenig, Thomas, 173n47
187n56 Kolata, Gina, 172n39
Islam, 4950 Kozinsky, Alex, 154n11, 155n19
Kraditor, Aileen S., 196n3
Jackson v. Perry, 177n27 Kuehl, Sheila James, 153n2
Jaggar, Allison M., 175n16 Kuhn, Thomas, 159n24, 184n32
James, William, 44
Janofsky, Michael, 188n62 Lacan, Jacques, 179n47
J.E.B. v. Alabama, 201n3 Lam v. University of Hawaii, 111
Jefferson, Thomas, 167n10 Landes, William M, 174n50
Jeffries v. Harris County Community Landrigan v. Celotex Corp., 169n21
Action Association, 193n33 Lare, James, 197n10
Jenkins, Patty, 189n72 Lasswell, Harold D., 197n10
Jennings v. Baxter Healthcare Corp., Laurel, Stan, 137
169n21 Law v. Canada, 177n32
Jespersen v. Harrahs Operating Com- Lawrence, Charles R. III, 193n37
pany, 140141, 202n19 Lawrence v. Texas, 206n45
Jones, Matthew, 166n3 Lears, T. J. Jackson, 197n6, 198n16,
Jost, John T., 197n12 198n25
Judge v. Marsh, 192n32 Lee, William E., 162n48
Legal education, 2022
Kahn v. Objective Solutions, Inc., Legal Realism, 5, 8384
191n12 Lenin, Vladimir, 132
Kairys, David, 155n1, 160n32, Leonard, Diana, 199n34
160n35, 161n38, 182n21 Levinson, Barry, 192n23
Kalman, Lauren, 154n13 Levinson, Sanford, 154n11
Kant, Immanuel, 4, 4748, 51 LHeureax-Dub, Claire, 155n24
Karlan, Pamela S., 186n50 Limbaugh, Rush, 147
Kastl v. Maricopa County Community Lipphardt v. Durango Steakhouse of
College, 204n25, 204n26 Brandon, Inc., 191n13
Katz v. United States, 3637 Lippmann, Walter, 124
Keller, Evelyn Fox, 183n24, 192n27 Lillieneld, David L., 171n36
Kelman, Mark, 171n37 Lochner v. New York, 32
214 | Index

Locke, John, 65, 66 McGrath, Erin A., 177n26


Lockyer v. City and County of San McKinney, Cynthia, 202n17
Francisco, 158n17 Meese, Edwin, 101
Lofton v. Secretary of Department of Mehring, Franz, 197n9
Children and Family Services, Meigs, Montgomery, 187n57
206n44 Menzies, Karen Barth, 194n44
Lombard Street, 14 Meritor Savings Bank v. Vinson,
Lord v. Lovett, 195n48 191n11
Luban, David, 5 Merrell Dow Pharmaceuticals, Inc. v.
Lugosi, Charles, 162n48 Havner, 168n20
Lumpkin, John H., 187n56 Miccio, G. Kristian, 158n22
Lynch v. Donnelly, 166n7 Michael M. v. Sonoma County Supe-
Lyotard, Jean-Franois, 164n21 rior Court, 185n41, 185n45
Militarism, 9698, 126, 137
Machiavelli, Niccolo, 127 Mill, John Stuart, 66
MacKinnon, Catharine A., 1; afrma- Miller v. Pzer, Inc., 169n21,
tive action, 178n43; equality stan- 194n45
dard, 8486, 9294, 186n49; false Millett, Kate, 123
consciousness, 123124, 129; Minnow, Martha, 177n33
importance to theory, 13, 84; liber- Monaghan, Patrick, 155n1
alism, 66; male dominance, 86; Monster, 189n72
Oncale brief, 203n20; pornogra- Montreal massacre, 194n40
phy ordinance, 194n41; postmod- Moore, Demi, 107
ernism, 164n24; rape prosecutions, Mootz, Frances J., 155n1
108 Moss, Kary L., 194n43
Madison, James, 167n10 Myerson, Denise, 198n23
Maher v. Roe, 206n42
Malette, Louise, 194n40 Nagasaki, 55
Marcuse, Herbert, 131 Nagourney, Adam, 188n62
Marsh v. Chambers, 166n7 Natural law, 24, 41
Marshall, Garry, 198n24 Negri, Antonio, 127, 161n38, 200n37
Martinez, Dalia, 167n14 Newman, Maria, 191n19
Marx, Karl, 124, 132, 199n29, Nguyen v. Immigration and Natural-
199n32 ization Service, 181n8, 185n41
Marxism, 124, 132, 197n13 Nichols v. Azteca Restaurant Enter-
Matsuda, Mari, 61, 109, 192n30 prises, Inc., 141
Mattis, James, 187n56 Nietzsche, Friedrich, 39, 206n39
McConnell, Michael W., 162n48 Nineteenth Amendment, 185n44
McCreary County, Kentucky v. Ameri- Nixon, Richard, 17
can Civil Liberties Union, 4849 Nowell, Geoffrey, 198n15
McCulp, Jerome McCristal, 187n56 Nussbaum, Martha C., 206n38
Index | 215

Occhiogrosso, Peter, 167n10 Pretty Woman, 128


OConnor, Sandra Day, 138 Price Waterhouse v. Hopkins, 141
Olson, Walter, 182n16
Oncale v. Sundowner Offshore Ser- Quine, Willard V. O., 45
vices, Inc., 139140, 142
OReilly, Bill, 106 R. v. Keegstra, 179n46
Ontario Human Rights Commission R. v. Lewis, 162n50
and OMalley v. Simson-Sears Lim- Rabidue v. Osceola Rening Com-
ited, 178n41 pany, 103
Orwell, George, 190n2 Radin, Margaret Jane, 155n1
Oxendine v. Merrell Dow Pharmaceu- Radin, Robert L., 168n17
ticals, Inc., 167n20 Rawls, John, 183n25
Raynor v. Merrell Pharmaceuticals,
Paine, Thomas, 167n10 Inc., 168n20
Palmer v. Thompson, 158n18 Raz, Joseph, 155n1
Palsgraf v. Long Island Railway, 87 Reagan, Ronald, 100, 101
Papps, Nick, 189n68 Reagans, The, 106
Parlodel, 59, 60 Reed, Thomas A., 154n12
Particle physics, 3738, 87 Reed v. Reed, 8485
Peirce, Charles Sanders, 44 Regents of the University of Califor-
Peller, Gary, 174n4 nia v. Bakke, 192n30
Penry v. Lynaugh, 162n2 Rehnquist, William, 49
Peoples v. City of Salina, 176n23 Rene v. MGM Grand Hotel, 141
Perdue, William R., Jr., 161n43 Revenge of the Sith, 50
Personnel Administrator v. Feeney, Reynolds v. Texas and Pacic Railway
181n8 Company, 170n29
Phyrro, 39 Reynolds, Gerald, 121122
Plato, Bob, 13, 39 Rich, Adrienne, 100, 127
Pollard, Deana, 158n22 Roberts, Julia, 128
Popper, Karl, 159n24 Robinson v. Jacksonville Shipyards,
Pornography, 40, 101, 194n41 Inc., 191n8
Positivism, 25, 42 Robson, Ruthann, 145, 147
Posner, Richard A., 5, 174n50 Rogers, Will, 7
Post, Robert, 184n37, 202n19 Roosevelt, Franklin Delano, 78
Postman, Neil, 190n2 Roper v. Simmons, 162n4, 162n5,
Postmodernism, 3941, 59, 88, 162n6, 166n2
142144, 186n52, 199n27 Rorty, Richard, 13, 4546, 150,
Poststructuralism, 39, 139, 142144 192n28, 202n17, 207n52
Powell, Thomas Reed, 30 Rosenfeld, Michael, 155n1
Powell v. Shriver, 204n27 Rositer, Clinton, 197n10
Pragmatism, 4446, 59 Rostker v. Goldberg, 181n8, 187n60
216 | Index

Rostron, Robert, 195n48 6061; sexual harassment, 101,


Rovner, Laura, 186n50 102, 105, 107
Ruff, Charles F. C., 156n7 Sextus Empiricus, 39
Russell, Bertrand, 181n11 Shakespeare, William, 17, 65
Rustad, Michael, 173n47 Shapiro, Ian, 155n1
Rychlak, Joseph F., 165n1 Sherry, Suzanna, 182n16
Rychlak, Ronald J., 165n1 Shklar, Judith, 20, 164n25
Ryle, Gilbert, 183n24 Sickle-cell anemia, 7172
Siegel, Reva B., 173n48, 184n37,
Saldo v. Sandoz Pharmaceuticals 190n4, 201n8, 202n19
Corp., 169n21 Sindell v. Abbott Laboratories,
Same-sex marriage, 104, 113, 195n47
200n43, 200n44 Slote, Michael, 165n36
San Antonio Independent School Dis- Smelt v. County of Orange, 206n43
trict v. Rodriquez, 174n6 Smith, Adam, 66
Sanders, Joseph, 168n20, 171n35, Smith, James W., 175n13
172n40, 196n50 Smith, J. C., 180n49, 199n31
Scales, Ann, 153n1; abortion, Smith, Pamela J., 193n34
194n43; dead end of formal equal- Smith v. Olin Chemical Corp.,
ity, 180n3; disjunction between 176n23
tort law and equality law, 173n48; Smith v. Wyeth-Ayerst Laboratories
domestication of legal feminism Co., 169n21, 172n42
154n8; legal education, 158n19, Spanbauer, Julie, 175n14
194n42; militarism, 158n20, Spindleman, Marc, 201n10, 201n12
158n21, 163n15, 189n70, 189n71; Stanley, Liz, 200n35
sports metaphors, 191n15 Stein, Gertrude, 32, 164n24
Scalia, Antonin, 31, 33, 49, 50, 84, Stenberg v. Carhart, 206n47
203n20 Stereotypes, 9394, 112
Scarborough, Cathy, 193n34 Stevens, John Paul, 49
Schanker, Thom, 188n67 Stevens, Robert, 180n2
Schauer, Frederick, 191n20, 192n22 Strauss, David, 185n38
Scheppele, Kim Lane, 198n19 Sullivan, Kathleen M., 173n48
Schmidt-Gleim, Meika, 186n47 Summers, Robert S., 155n1
Schneider, Elizabeth M., 205n31 Summers v. Tice, 195n47
School District of Abingdon Town- Sunstein, Cass R., 204n38
ship v. Schempp, 166n7 Sussman, Erika, 197n7
Schudel v. General Electric, 168n21 Sutera v. Perrier Group of America,
Schultz, Vicki, 205n31 171n34
Sedgwick, Eve Kosofsky, 47, 167n15 Swanton, Christine, 165n36
Session v. Perry, 177n27
Sex discrimination: grooming cases, Talbot, Margaret, 190n5
140142; pharmaceutical matters, Texas Beef Group v. Winfrey, 191n15
Index | 217

Third Reich, 27, 161n39 Wartofsky, Marx W., 181n10


Thomas, Clarence, 49, 122 Washington, George, 167n10
Thomas, Sidney, 141 Washington v. Davis, 178n42
Toobin, Jeffery, 192n21 Wasserstrom, Richard, 176n19
Torke, James W., 155n1 Weapons of mass destruction, 19, 62
Traynor, Roger, 194n46 Weaver, William, 158n16, 165n30
Tribe, Laurence, 162n48, 183n22 Webster v. Reproductive Health Ser-
Tucker, Robert C., 197n9 vices, 149150
Wechsler, Herbert, 181n9
United States v. Moore, 48 Weinstein, Jack B., 170n25
United States v. Nixon, 156n2, Weisman, Rebecca, 175n13
158n17 West, Robin, 162n7, 178n44, 190n3
United States v. Seeger, 167n13 Whitbeck, Caroline, 182n19
United States v. Virginia, 201n2 Whitehead, Alfred N., 13, 184n35
University of New Mexico Law Whitford, William C., 155n1
School, 2 Williams, Joan, 121123, 200n36
Williams, Patricia J., 154n7, 178n44,
Valdes, Francisco, 187n56 196n4
Van Orden v. Perry, 48, 166n7, Williams, Wendy, 143
166n8, 166n9 Williamson v. Lee Optical, 177n31,
Vassallo v. Baxter Healthcare Corp., 177n32
169n21 Winfrey, Oprah, 106
Verloo, Mieke, 186n47 Winston, Judith, 111
Vieth v. Jubelier, 177n28 Wise, Sue, 200n35
Vioxx, 51, 61 Wittgenstein, Ludwig, 39, 59, 8992
Vojdik, Valorie J., 200n1 Woolf, Virginia, 163n19, 179n48
Voting Rights Act of 1965, 73 Worcester v. Georgia, 25, 26
Vonnegut, Kurt, 176n20 Wright, John W., 162n9
Vriend v. Alberta, 178n39 Wright, Richard W, 171n37

Wagner, Wendy E., 196n49 Yearwood, Trisha, 83, 186n46


Walker, Alice, 135
Wallis v. Smith, 201n9 Zappa, Frank, 120
Warner, Rex, 182n17 Zeno, 39
Warren Court, 65 Zorach v. Clausen, 166n7
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About the Author

Ann Scales is a lawyer, teacher, and feminist activist. Having


taught law for twenty-ve years, she is at present an associate professor
at the University of Denver College of Law. She is a founding contribu-
tor to the eld known as feminist jurisprudence.

219